Employment Dispute Lawyer

Under Section 2(s) of the Industrial Disputes Act, 1947, a workman is any person employed in any industry to do manual, unskilled, skilled, technical, operational, clerical, or supervisory work, but excludes persons employed in a managerial or administrative capacity, and those employed in a supervisory capacity drawing wages exceeding fifteen thousand rupees per month. This distinction is critical because the extensive protections of the Industrial Disputes Act, including the mandatory conciliation, Labour Court jurisdiction, and retrenchment compensation, apply only to workmen and not to managerial employees.

Under Section 25F of the Industrial Disputes Act, 1947, an employer must give the workman one month's written notice or pay wages in lieu of such notice, pay retrenchment compensation at the rate of fifteen days' average wages for each completed year of continuous service, and notify the appropriate government authority in writing. For establishments employing one hundred or more workmen, Section 25N requires prior permission from the appropriate government before any retrenchment, which the government must grant or refuse within sixty days. Non-compliance renders the retrenchment illegal.

The enforceability of post-employment non-compete clauses in India is severely restricted by Section 27 of the Indian Contract Act, 1872, which renders agreements in restraint of trade void. Indian courts have consistently held that a clause that prevents a former employee from working in their field after the employment ends is void as a restraint of trade, regardless of the consideration paid. Courts will enforce non-solicitation clauses (preventing poaching of clients or colleagues) and confidentiality clauses, but will not grant injunctions preventing a former employee from joining a competitor in a similar role.

The Industrial Disputes Act, 1947 does not prescribe a fixed limitation period for raising an industrial dispute, but the courts apply the principle of laches and delay. A reference to a Labour Court or Tribunal is made by the appropriate government on receipt of a failure report from the conciliation officer. Courts have in practice declined to entertain stale claims. For wage claims under the Payment of Wages Act, 1936, the application must be made within one year of the date on which the wages became due. For EPF disputes, the Appellate Tribunal has its own prescription.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires every employer with ten or more employees to constitute an Internal Committee and to provide a safe working environment. Sexual harassment includes unwelcome physical, verbal, or non-verbal conduct of a sexual nature. An aggrieved woman may file a complaint within three months of the incident (extendable by three months). The Internal Committee conducts an inquiry and may recommend transfer, warning, suspension, or termination of the respondent, as well as compensation to the complainant. The employer must act on the recommendations within sixty days.

An employee whose wages are unlawfully withheld may file an application before the Payment of Wages Authority under Section 15 of the Payment of Wages Act, 1936 within one year of the due date of the wages. The Authority may direct payment of the wages due along with compensation up to ten times the amount withheld if the delay was not bona fide. In addition, if the employer has committed a breach of the employment contract, the employee may file a civil suit for recovery of dues or raise an industrial dispute if they qualify as a workman under the Industrial Disputes Act.

Under the Industrial Disputes Act, 1947 and the Model Standing Orders, disciplinary action against a workman for misconduct must follow a domestic inquiry that complies with the principles of natural justice: the workman must be given a charge sheet, provided an opportunity to respond, permitted to be accompanied by a co-worker or union representative, presented with the evidence, and allowed to cross-examine witnesses. A dismissal without a proper domestic inquiry or where the inquiry is found to be vitiated can be challenged before the Labour Court, which may set aside the dismissal and award reinstatement with back wages, or alternatively award compensation in lieu of reinstatement.

Yes. Employees of central government undertakings and central public sector enterprises may be governed by Central Government Industrial Tribunal cum Labour Courts for disputes that the Central Government refers to adjudication. For purely managerial-grade employees, service rules and departmental proceedings under the relevant service regulations apply, with appeal to the Central Administrative Tribunal in some cases. The POSH Act applies equally to all establishments, including central and state government offices, with the Internal Committee requirement applying uniformly.