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Though every effort has been made to ensure that the information in Volume 2
Issue 7 is accurate and appropriately cited/referenced, neither the Editorial Board
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Copyright © International Journal for Legal Research & Analysis
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EDITORIAL TEAM
EDITORS
Megha Middha
Megha Middha, Assistant Professor of Law in Mody University of Science
and Technology, Lakshmangarh, Sikar
Megha Middha, is working as an Assistant Professor of Law in Mody
University of Science and Technology, Lakshmangarh, Sikar (Rajasthan). She
has an experience in the teaching of almost 3 years. She has completed her
graduation in BBA LL.B (H) from Amity University, Rajasthan (Gold
Medalist) and did her post-graduation (LL.M in Business Laws) from NLSIU,
Bengaluru. Currently, she is enrolled in a Ph.D. course in the Department of
Law at Mohanlal Sukhadia University, Udaipur (Rajasthan). She wishes to
excel in academics and research and contribute as much as she can to
society. Through her interactions with the students, she tries to inculcate a
sense of deep thinking power in her students and enlighten and guide them to
the fact how they can bring a change to the society
Dr. Samrat Datta
Dr. Samrat Datta Seedling School of Law and Governance, Jaipur
National University, Jaipur. Dr. Samrat Datta is currently associated
with Seedling School of Law and Governance, Jaipur National University,
Jaipur. Dr. Datta has completed his graduation i.e., B.A.LL.B. from Law
College Dehradun, Hemvati Nandan Bahuguna Garhwal University,
Srinagar, Uttarakhand. He is an alumnus of KIIT University,
Bhubaneswar where he pursued his post-graduation (LL.M.) in Criminal
Law and subsequently completed his Ph.D. in Police Law and Information
Technology from the Pacific Academy of Higher Education and Research
University, Udaipur in 2020. His area of interest and research is
Criminal and Police Law. Dr. Datta has a teaching experience of 7 years
in various law schools across North India and has held administrative
positions like Academic Coordinator, Centre Superintendent for
Examinations, Deputy Controller of Examinations, Member of the
Proctorial Board
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Dr. Namita Jain
Head & Associate Professor
School of Law, JECRC University, Jaipur Ph.D. (Commercial Law) LL.M., UGC -
NET Post Graduation Diploma in Taxation law and Practice, Bachelor of
Commerce.
Teaching Experience: 12 years, AWARDS AND RECOGNITION of Dr. Namita Jain
are - ICF Global Excellence Award 2020 in the category of educationalist by I Can
Foundation, India.India Women Empowerment Award in the category of
“Emerging Excellence in Academics by Prime Time & Utkrisht Bharat Foundation,
New Delhi.(2020). Conferred in FL Book of Top 21 Record Holders in the category
of education by Fashion Lifestyle Magazine, New Delhi. (2020).Certificate of
Appreciation for organizing and managing the Professional Development Training
Program on IPR in Collaboration with Trade Innovations Services, Jaipur on
March 14th, 2019
Mrs.S.Kalpana
Assistant professor of Law
Mrs.S.Kalpana, presently Assistant professor of Law, VelTech Rangarajan Dr.
Sagunthala R & D Institute of Science and Technology, Avadi.Formerly Assistant
professor of Law,Vels University in the year 2019 to 2020, Worked as Guest
Faculty, Chennai Dr.Ambedkar Law College, Pudupakkam. Published one book.
Published 8Articles in various reputed Law Journals. Conducted 1Moot court
competition and participated in nearly 80 National and International seminars and
webinars conducted on various subjects of Law. Did ML in Criminal Law and
Criminal Justice Administration.10 paper presentations in various National and
International seminars. Attended more than 10 FDP programs. Ph.D. in Law
pursuing.
Avinash Kumar
Avinash Kumar has completed his Ph.D. in International Investment Law
from the Dept. of Law & Governance, Central University of South Bihar.
His research work is on “International Investment Agreement and State's
right to regulate Foreign Investment." He qualified UGC-NET and has
been selected for the prestigious ICSSR Doctoral Fellowship.He is an
alumnus of the Faculty of Law, University of Delhi. Formerly he has been
elected as Students Union President of Law Centre-1, University of
Delhi.Moreover, he completed his LL.M. from the University of Delhi
(2014-16), dissertation on "Cross-border Merger & Acquisition"; LL.B.
from the University of Delhi (2011-14), and B.A. (Hons.) from Maharaja
Agrasen College, University of Delhi. He has also obtained P.G. Diploma
in IPR from the Indian Society of International Law, New Delhi.He has
qualified UGC – NET examination and has been awarded ICSSR –
Doctoral Fellowship. He has published six-plus articles and presented 9
plus papers in national and international seminars/conferences. He
participated in several workshops on research methodology and teaching and learning.
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ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS
ISSN
2582-6433 is an Online Journal is Monthly, Peer Review, Academic Journal,
Published online, that seeks to provide an interactive platform for the
publication of Short Articles, Long Articles, Book Review, Case Comments,
Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim
is to upgrade the level of interaction and discourse about contemporary issues of
law. We are eager to become a highly cited academic publication, through
quality contributions from students, academics, professionals from the industry,
the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL
RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all
legal branches, as long as the work is original, unpublished and is in consonance
with the submission guidelines.
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CRITICAL STUDY ON DOCTRINE OF HIRE
AND FIRE IN INDIAN LABOUR LAW
Authored by –
: Prachi Sharma(SAP Id :50084799 Roll No. R129220011)
Ishika Pundir (SAP Id : 500085197 Roll No. R129220021)
INTRODUCTION
There are three primary types of employees, as defined by Indian labour and employment
laws:
Public sector employees and those working for government-controlled corporations. Private
sector personnel and Public Sector Undertakings (PSUs). The Indian Constitution governs the
laws and policies regulating the employment of public servants.
Government employees so benefit from tenure protection, statutory service claims, and
automatic yearly wage increases. Employees in the public sector are subject to their own
service norms, which are either based on statutory instructions or have statutory force in the
case of statutory organisations. Employees in the corporate sector can be further classified
into two groups: managerial personnel and workmen.
There are no legal requirements for their employment, hence in the case of management and
The terms of employment for supervisory staff and employees are defined by their individual
employment contracts, and their services may be terminated in accordance with those
contracts.
It's crucial to understand your rights as an employee in any company. Many people join
businesses unaware of the laws governing hiring and firing, which leads to many employers
abusing their workers. While these instances are rare in the public sector, they are common in
the private sector. This essay focuses on the laws in India that were created to guard
employees from such abuse.
Employees may be covered by the legislation regardless of whether they are employed full-
time, directly, or on a temporary basis. There are currently no particular rules in India that
might specify a process or way for employing staff in the private sector.
Employers may hire people on a permanent or contract basis. They may do so by posting job
openings in newspapers, via recruiting agencies, posting positions online, or using personal
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networks.
There are three primary kinds of workers recognised by Indian labour and employment laws:
those employed by the government, those working for public sector undertakings (PSUs), and
those employed by the private sector.The Indian Constitution covers the rules and policies
regulating the employment of government personnel. Therefore, tenure protection, statutory
provider disputes, and automatic yearly profit increases are all benefits enjoyed by
government employees.Employees in the public sector are subject to their own carrier
policies, which are either based on statutory instructions or have statutory effect in the case of
statutory corporations. Personnel in the corporate sector can be divided into two sizable
classes: control group employees and workmen.
LABOUR LAWS AND SOCIAL JUSTICE
The Supreme Court has really continuously passed legislation keeping in view Indian labour
regulations.
Since the promulgation of the Constitution. Despite the fact that industrial law is always
changing, the Supreme Court had a pioneering role in developing first principles that are so
sound that they are still substantially upheld today.
In terms of the social and economic framework of society, social justice refers to the
equitable adjustment of the numerous interests involved. Its ultimate goal is industry peace
and tries to do so by creating harmony in labour relations on an ethical and financial basis.
Social fairness is therefore a goal of industry peace. Social justice is therefore a labour-
related application. The Supreme Court made this observation in J.K. Cotton Spinning
&Weaving Mills v. Labour Appellate Tribunal1. The theory of social justice has been
highlighted as a result of the growth of industrial law over the past ten years and several
decisions by this court addressing industrial issues. The idea of social justice is not
constrictive, biassed, or petty. Its scope is extensive. Its foundation is the fundamental
concept of socioeconomic equality, and its goal is to help eliminate socioeconomic
inequalities. However, while dealing with industrial issues, it takes a practical and pragmatic
approach rather than taking a dogmatic stance or giving in mindlessly to abstract ideas. As a
result, it makes an effort to find a resolution to the employees' conflicting claims.
A solution that is just and equitable to all sides with the goal of promoting harmony and good
relations between labour and capital.
The ultimate goal of industrial adjudication is to support the expansion and development of
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the national economy, and it is with this goal in mind that industrial adjudication is used to
resolve labour conflicts. Contracts are not the foundation of social fairness. In actuality, it
restricts the independence of contract. The days of hiring and firing employees are long gone,
and the Industrial Court has the authority to become involved if it can be shown that the
employment contract has to be changed for social justice reasons. In reality, the Industrial
Courts have incredibly broad powers that no civil court has. We cannot lose sight of the
restrictions on our freedom. While we shouldn't lose sight of our societal objectives, if we
don't handle our challenges pragmatistically, our mission might be compromised. The
Industrial Courts must thus find a balance between the opposing demands of the company
and the employee in order to uphold social fairness. The employee's right to social justice
must be balanced with the employer's fundamental right to operate his business. The former
relates to the area of our Constitution's essential rights, while the latter does so in relation to
the Directive Principles. The ultimate goal is to maintain calm in the industrial sector so that
output may rise and the country's economy can expand.
LEGAL REQUIREMENTS FOR HIRING EMPLOYEES
When we talk about the kind of Agreement There are no predetermined legal criteria as to the
established method of an employment agreement, with the exception of some State-specific
rules that require an employer to produce a letter outlining specified areas of employment.
The standard procedure is for the employer to send an appointment letter outlining the rules
and regulations laid down for work, which the employee then signs, or for the employer and
employee to enter into a formal agreement on a bilateral basis. An employment contract may
be made orally. According to the Indian Contract Act of 1872, the acceptance of such a
contract must be unconditional and absolute, and it must be conveyed in a customary and
reasonable manner.
However, it is advised to have a documented work contract to prevent disagreements later on.
Often there used to be no employment agreement signed by the company and employee for
blue-collar workers; instead, appointment letters were sent out. However, creating formal
employment agreements with the employees is becoming more and more typical.
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Mandatory Conditions
Trial Phase
For either white-collar or blue-collar employees, there is no legal necessity to offer a trial or
probationary term of employment. Despite the foregoing, the initial period of probation for
Blue-collar workers: They may be three months based on the application of the
Industrial Employment Standing Orders Act, 1948. In actuality, corporations do have
probationary periods and may extend them if necessary, either in the employee
handbook/company policy or in the letter of appointment.
Working Hours for White-Collar Personnel: The rules of the employment
agreement often regulate an employee's work hours. These employment contracts must
adhere to the Shops and Establishments Acts passed by specific Indian states.
If an employee is working from an office inside the premises of a plant, the Factories Act of
1948). As a result, circumstances like working hours may vary from one state to another and
based on the type of establishment.Overtime requirements may also alter depending on the
Shops and Establishments Acts, etc., as appropriate. For example, the Bombay Shops and
Establishments Act also known as BSEA act of 1948 specifies that the maximum hours of
work in stores, commercial establishments, residential hotels, restaurants, eating
establishments, theatres, or other places of public amusement or entertainment are 9 hours per
day and 48 hours per week.
Blue-Collar Workers : The hours of labour for blue-collar workers in non-
manufacturing firms shall be determined in stores and other establishment approved by the
state.
The Factories Act of 1948
It states that an adult worker in manufacturing companies may be compelled to work for a
maximum of nine hours per day and forty-eight hours per week, excluding overtime, and ten
hours per day and sixty hours per week, including overtime. A total of 50 hours can be
worked in overtime in any one quarter. A youngster or teenager is not permitted to labour for
more than 412 hours every day.
White-collar workers: The employer and employee mutually agree on the employee's
salary, and this provision is a key component of the employment contract. Employees in India
are entitled to double the regular rate of pay for overtime.
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Blue-Collar Workers: Under the Minimum Wages Act of 1948, the Central or State
Government sets the minimum wages that must be paid to employees and evaluates those
minimum wages every five years. For instance, the minimum rates of daily pay may range
from (or more), depending on the location of operation: Employees at enterprises with 20 or
more employees are entitled to bonus payments based on profits, output, or productivity
under the Payment of Bonus Act of 1965. The Payment of Wages Act of 1936 establishes a
deadline for companies to pay out wages to their employees and protects employees against
unauthorised deductions.
Vacations and Rest Periods
Those in white collar jobs: The holidays issued by the appropriate State typically control the
holiday entitlement, depending on where a person is employed. An employee would typically
be eligible to State holidays, required weekly holidays (such as Sundays), and national
holidays (such as Independence Day, Republic Day, etc.).
Additionally, depending on the state's Shops and Establishments Acts or the Factories Act,
employees must be entitled to paid leave for a specific number of days. The Factories Act or
Shops and Establishments Acts, as relevant, also specify rest intervals. For instance, the
Bombay Shops and Establishments Act of 1948 mandates that every store and commercial
institution must stay closed on at least one day of the 5 hours of work, followed by a break of
no less than an hour, and no more than three hours of overtime.
Blue-Collar Workers: The vacations and rest periods for blue-collar workers in non-
manufacturing businesses shall be controlled by the State-specific Shops and Establishments
Act (and, depending on its application, the Industrial Employment Standing Orders Act,
1948). The Factories Act of 1948 establishes an pension plan for blue-collar workers
employed in industrial facilities.
No one will be obliged to work for more than ten days straight without a holiday, according
to provisions on compensating holidays and mandated weekly holidays. Additionally, this
law mandates rest breaks . A maximum of five hours of labour is followed by a half-hour of
paid yearly leave. According to the Weekly Holidays Act of 1942, blue-collar workers who
work in stores, restaurants, and theatres are entitled to a weekly holiday without having their
pay reduced or withheld.
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Age Minimum/Maximum
Those in white collar jobs: In several trades, the age requirement for work is 15, regardless of
the institution. However, in reality, those who are deemed qualified for such jobs must be at
least 20 years old. Blue-Collar Workers: Children under the age of 14 are legally prohibited
from working in the blue-collar sector. To work in several trades, teenagers between the ages
of 15 and 18 need a certificate of fitness. The legal limit age for white collar or blue-collar
workers, depending on what the company specifies.
Illness/Disability Employees, whether they work in white collar or blue collar positions, are
entitled to paid sick leave, the length of which varies from sector to sector or state to state.
White-collar workers also have the option of receiving paid sick leave in accordance with the
terms of their employment contract, the Shops and Establishment Act, or the Factories Act,
depending on whether they work in a factory or a commercial establishment and which
option is more advantageous to them. The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act of 1995 promotes employment for people
with certain disabilities.
Place of Employment/Mobility
The employee and the employer(white collar or blue collar employee) agrees upon the
common grounds regarding the mobility and the workplace location, such mutual agreement
can be either verbal or in terms of employment agreement.
Various Agreements
The many types of employment agreements may be divided into:
Employment contracts with a set term that end on a specific date or after the conclusion of a
project.
Full-time employment agreements: These have mandatory provisions affecting full-time
employees.
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Arrangements for Apprenticeship
The Apprentices Act of 1961 covers the provisions that must be included in an apprenticeship
contract as well as the training of apprentices. As apprentices are categorised under the law as
trade apprentices, graduate and technical apprentices, and technician (vocational) apprentices,
this legislation applies to both blue-collar and white-collar workers. Secrecy/Confidentiality
A clause relating to privacy and secrecy is included in almost all employment contracts in
India. A confidentiality breach might be cause for firing.
FIRING THE WORKER
Termination Procedures for the Agreement
Those in White Collar Jobs: The conditions of the employment agreement will control the
process for terminating employment. This clause must follow each state's Shops and
Establishment Act. According to the Shops and Establishment Acts, the employee must be
provided a written notice of the change or be paid in its place. For instance, the Bombay
Shops and Establishment Act mandates that employees who have been continuously
employed for at least three months must provide at least 14 days' written notice, while those
who have been continuously employed for at least a year must provide 30 days' written
notice, or pay wages in lieu of notice.
Blue-Collar Workers: According to the Industrial Disputes Act of 1947, no employee who
has worked for less than one year (240 days in a year) may be fired without providing one or
three months' notice (depending on whether the establishment employs up to 100 or more of
these workers), payment in lieu of notice, and compensation. Additionally, depending on
whether the institution has fewer than 100, 100, or more than 100 such employees, there may
be a necessity to inform the appropriate government authorities or to acquire prior
government permission.
Instant Termination
White-Collar Workers: The conditions of the employment contract will apply to their
dismissal. White-collar workers' employment may be terminated abruptly for serious
disciplinary violations if the appointment letter, employment contract, or corporate policy do
not forbid it. Before such a termination without notice, some state statutes may call for an
investigation.
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Resignation with Cause
Those in White Collar Jobs: According to the legislation, if an employer wants to fire an
employee, he must provide the employee written notice or pay the employee's wage in its
place. These provisions are listed in the employment contract, but even if specific details are
not addressed, the employer may nevertheless adhere to the law.
Employees in Blue Collar Jobs: The Industrial Disputes Act 1947, according to a law passed
in 1947, an employee who has worked continuously for at least a year cannot be fired without
giving one month's notice or receiving cash in place of notice.
Age-Related Termination of Employment
According to the Employees' Pension Scheme of 1995, which applies to both white-collar
and blue-collar government employees, superannuation or retirement benefits will be
provided to an employee once they reach the age of 58. The retirement age for both kind =s
of workers employed in the private sector is determined by corporate policy rather than by
the legislation as allowed by the employment contract, in the event of force majeure
Blue-Collar Workers No employee may be fired without cause. According to the Industrial
Disputes Act of 1947, every employee who has been in continuous service for at least a year
and is terminated for reasons other than financial difficulties, losses, the expiration of a lease,
or a licence is entitled to compensation up to three months' average wage.
Termination by Agreement of the Parties
Any white-collar or blue-collar employee's employment may be ended at any moment by
mutual consent between the employer and employee (in writing or verbally).
MAINTAINING THE RELATIONSHIP WITH THE
EMPLOYER
Alterations to the contract
Assume that the employer may modify the employment agreement of both white-collar and
blue-collar employees, provided such modifications are not unilateral or unlawful. Otherwise,
the employer may modify the terms of the contract with the employee's proper approval.
Depending on the type of job a blue-collar employee is doing, the employer and employee
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will either enter into an employment agreement or an appointment letter.
Change in Business Ownership White-Collar Workers: The employment, firing, or retention
of personnel is governed by corporate policy and the agreement between the new and old
companies in the event that a firm changes ownership (a business division is transferred from
one company to another).However, transfer would need the approval of an employee.
The Blue-Collar Workforce
Every employee who has worked for the company for at least a year continuously is eligible
to receive one month's notice and 15 days' average pay as severance compensation in the
event that the company changes ownership, unless the contract stipulates otherwise. When a
certain change in the ownership of the business and the conditions laid down for the
employee has not been interrupted, are no less favourable than those that apply to him before
the ownership change,The previous employer may dismiss the employee under such
circumstances.
Social Security payments
Employees in both white-collar and blue-collar jobs are eligible for social security benefits
including gratuities and provident funds. Employees' Provident Fund Scheme, 1952 (EPF),
Employees' Pension Scheme, 1995 (EPS), and Employees' Deposit Linked Insurance
Scheme, 1976 (EDLIS) benefits, the Employees' Provident Funds and Miscellaneous
Provisions Act of 1952 requires both the employer and employee to contribute 12% of the
basic wages, dearness allowance, and retaining allowance, (if any), to the Employee's
Provident Fund Scheme.
Mishaps at Work
White-Collar Workers: If an accident or death occurs at work while a worker is doing their
tasks and if the employer is at fault, they are responsible for compensating the victim.
Blue-Collar Workers Accidents at work for blue collar workers in specific occupations are
covered by the Employee's Compensation Act of 1923. According to the Act, if an accident
occurred while an employee was on the job or if the employer failed to keep the equipment in
proper working order, they would be responsible for compensating the employee for their
injuries.
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No compensation will be due from the employer.
if the worker did not adhere to the safety procedures outlined by the employer or if the
accident happened while they were inebriated. In the event that an employee passes away
while doing his or her job obligations, the company is obligated to make a payment to the
person's dependents. Certain employees may also be covered under the Employees State
Insurance Act of 1946 in specific businesses. This law also offers some employee categories
benefits in the event of workplace accidents (mostly bluecollar employees). The Employee's
Compensation Act of 1923 does not apply to certain employees who are covered by this Act,
however.
CONCLUSION
I would want to draw the following conclusion: Every sector (public sector and private
sector) for the protection and welfare of many types of workers (permanent, contractual, and
part-time), but very few people are aware of its correct application to prevent employer
exploitation. Many employees sign the contract agreement or bond without reading it or
understanding its legal implications and terms. Workers join trade unions, which provide
them a sense of security, to prevent the abuse of laws. However, it is important to educate
workers about the rules and rights that apply to them. Employers wouldn't terminate workers
needlessly if workers and employees were aware of the regulations governing termination.
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