In India, today, employees who are covered under the definition of ‘Workman’ can take recourse to the machinery provided under the Industrial Disputes Act, 1947 to assert their rights. However, a large number of persons engaged in jobs particularly in the IT sector and even the service sector may not come within the definition of ‘workman’, therefore the machinery provided under Industrial Disputes Act, 1947 is of no help to these employees, seeking recovery of their dues or damages from their employers. However, in case of payment of Gratuity the employees can approach the machinery under Payment of Gratuity Act, 1972. The definition of ‘workman’ is restrictive, however, the definition of ‘employee’ under the Payment of Gratuity Act, 1972 is elaborate, therefore an employee may not be a workman but he may still approach the authority under the Act of 1972 against his employer.
In case of injury or death during the course of employment, an employee who may not be covered under the definition of ‘workman’ can approach the machinery under Employees Compensation Act, 1923. A list of persons subject to provisions under Section 2 (1)(dd) is included in the definition of employees who can approach the said machinery provided under the Employees Compensation Act, 1923 to recover compensation provided under the Act. Schedule II of the Act and particularly (ii) can be interpreted liberally and employees who are otherwise not covered under the definition of ‘workman’ in factory, can be covered by Schedule II (ii) of the Act. The employees employed in shops and establishments and various other establishments and provided in Schedule II can also be covered under the Act of 1923.
However, besides Gratuity and accidental injury, in case of termination of violation of employment conditions, the only remedy available to the employer who is not a workman, is to approach the Civil Court by filing a suit for recovery. This remedy, however, is time consuming and expensive. Sometimes mere sending of legal notice may also serve the purpose.
With regard to The Factories Act, 1948 all those persons covered under the definition of ‘workman’ under Section 2(l) of the Act can approach the office of the Labour Commissioner or Factory Inspectors to assert their rights under the Act. Further, as per Section 111A every worker can represent to the Factory Inspector directly or through his representative regarding inadequate provision for his health and safety in the factory.
There are, however, risks if you proceed legally against your employer. The general attitude of the management may become stern and negative towards you and you may be put under scrutiny and examination by your employer, the smallest mistakes will be held against you. Your employers may dig into your past to root out problems with ex-employers if any, your private life may also come under scrutiny, you may be seen as a ‘litigious’ or ‘belligerent’ employee, which may end up affecting your future employment prospects.
It is important to note here that employers too can proceed to court against their employees. Negligent conduct and failure in being diligent, carrying out another profession parallel with your job even if that profession is not in conflict with your job, not serving notice period, pilferage/misappropriation of funds or intellectual property of the firm, leaking trade secrets, client details etc. are all instances when your employer may proceed legally against you.