How can an Employee sue an Employer in India ?

INTRODUCTION:

Under the employer-employee relationship, it is the employer who is in a superior position. Many times, this superior position is exploited and the employees are subject to discrimination, verbal abuse and even they are not paid with their hard-earned wages. On the grounds of such unpaid wages, discrimination and oral abuse legal action can be brought against the employers.

In this article we are going to discuss about Employee suit/complaint against employer in India or against company based on some legal grounds to sue employer for not paying salaries, discrimination in workplace, also we will discuss about Employer complaint and how to take legal action against employer in india? And can employee file case against employer?

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Workplace attorney

A workplace attorney or lawyer is also called an employment attorney(or workplace attorney). The workplace attorney handles cases of clients/employees with disputes, such as salary issues, violations, such as privacy problems, or claims for medical support or old age benefits that an employee is entitled to.

When you should hire a workplace attorney?

A workplace attorney is a professional who specializes in workplace laws and regulations set by the government. These workplace attorney work to make sure there is absolute fairness in employment policies. They usually resolve or settle any disputes that may arise between employees and employers. They also come between disputes among employees themselves.

According to the federal law, all workers have rights, sometimes workers are not aware of them. The workplace attorney help uphold and protect the rights of all employees. But they even act on behalf of employers too in other situations where the rights of the employers are violated.

The state laws regarding employment laws do vary. Also just having laws is not enough. The real deal is getting these laws implemented in spirit. 

UNPAID WAGES

One of the primary reasons for anyone to be in any job is to earn a living and if wages or salary is not paid then it really becomes difficult for anyone to continue with the job. On to this, it is also the moral obligation but also the legal obligation of any employer towards the employee to pay the same.

Suing employer for not paying As per Section 3(1) of the Payment of Wages Act, 1936, “every employer has a responsibility to provide wages or salary to the employee employed under him.” So, whenever an employer-employee forms a contract, employees are entitled to get a salary for their work and if it is not paid, Employee can take legal action against employer in India for non-payment of salary. This is because under the law of contracts when parties sign any contract under free consent, it becomes binding on them to abide by it. And on failure to do so, the contracting parties may bring an action against each other.

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Therefore, the following acts are the grounds on which the suit can be filed for non-payment of salary by employer: (legal action against employer in India)

• Deduction not mentioned in the contract of employment

• The employee does not agree to such a deduction

• Deduction as against the law

• Any unauthorized deduction of salary by the employer like:-

• Deduction of salary as punishment.

• Delay in payment of salary when the employer is on the verge of being insolvent or bankrupt.

• Employers terminate an employee without clearing salary dues.

These are the legal action against employee if any of scenario mentioned above took place there can be a legal action against employee 

Provisions available as against unpaid wages are as follows:

Remedies for such non-payment are provided under different acts such as the Payment of Wages Act, 1932; Industrial Dispute Act, 1047; Labour Court and Labour Tribunal; The Companies Act, 2013.

• Payment of Wages Act, 1932- Here suit can be filed u/s 15 of the Act for the recovery of unlawful deduction. The section provides the procedure for such claims as well as the penalty for mala fide

• Industrial Dispute Act, 1947- Here suit is filed u/s 33C of the Act for recovery of arrear salary. Salary can be claimed by the employee himself or the authorized person and on the employees’ death, the same can be claimed by the authorized person or his/her heirs by filing an application before the labour Then the principle of natural justice is to be followed where the parties to the suit are allowed to be heard and lay down their defence. The Court, on being satisfied with such due, issues a certificate. Further, the collector can proceed for the recovery of such arrear.

U/s 4 of the Act, a complaint against employer in India can also be filed before the conciliation officer for the recovery of such unpaid salary and the officer appointed under this section shall act as a mediator. If the dispute gets settled between the parties, a report along with a memorandum has to be sent to the appropriate government which needs to be signed by the parties to the dispute. If the settlement is not reached, then also a report has to be prepared and sent to the appropriate government stating the reason for the same. The case can also be forwarded to the Labour Court and Labour Tribunal for adjudication within 30 days if the appropriate government thinks fit. The Tribunal has all the powers of a Civil Court provided under the Code of Civil Procedure, 1908.

• The Companies Act, 2013- Sec 447 of the Act can be invoked when the delay in the payment is affected due to employers’ involvement in the fraudulent act. The section lays down punishment for fraud, i.e., imprisonment for a minimum period of 6 months which may extend to 10 years and a fine equivalent to the amount of fraud or three times the amount of fraud. Here, the remedy can also be claimed under Indian Penal Code.

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DISCRIMINATION

In any workplace, people of diverse culture, religion, caste, sex, language, place of origin, gender, disability etc., will be found. There have been several instances where the victims of racial discrimination at the workplace have opened up. Such victims have a right to bring a legal action against employer in India. Discrimination can be on one ground or on multiple grounds.

Therefore, the following acts are the grounds on which the employers can be sued for discrimination at the workplace: (legal action against employer in India)

• Non-payment of equal remuneration to equally competent or qualified employee

• Denial of certain benefit to a particular employee

• Discrimination while granting leave and promotion.

• Exclusion of potential employees from work,

• Discrimination on the ground of marital status, political opinion, etc.

• Discrimination on the ground of disabilities like “blindness, low vision, leprosy-cured, Hearing impairment, locomotor disability, mental retardation and mental illness”.

• Maternity Leave.

Provisions available as against discrimination are as follows: 

• Constitution of India- The Indian Constitution has a different provision like Art. 14, 15 and 16 which promotes equality before law; prohibits discrimination on the grounds of religion, race, caste, sex and place of birth and empowers the “state to make reservations with respect to an appointment for posts in favour of backward classes of citizens if in the opinion of state such classes are under-privileged respectively”. However, rights can only be claimed against the State as defined under Art. 12 of the Constitution of India. Further, under Article 39 of the Constitution, “all men and women are urged to have equal right to have an adequate means of livelihood, right to shelter, food, education, and work”.

• Equal Remuneration Act, 1976- Here discrimination issues on the basis of recruitment, wages, work-transfer, and promotion are covered. For Ex: Equal remuneration shall be paid to both men and women for same work or same nature of work.

• Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; National Trust for Welfare of Persons with Autism, Cerebral, Palsy, Mental Retardation and Mental Disability Act, 1999 and Rehabilitation Council of India Act, 1992; The Right of Persons with Disability, Act, 2016- The 1995 Act was passed to provide equal opportunities like education, social security, employment and unbiased atmosphere for the disabled people. For Ex: u/s 47 of the Act, if any government employee suffers from any disability during the course of employment his should not be reduced but should be employed in a different capacity. The former two Acts provide protection with specific disabilities. The 2016 Act states that there should not be any discrimination in disabled government employees.

• Industrial Employment Standing Orders Act, 1946- Here, employees are required to be provided with proper redressal mechanism against discrimination.

• Industrial Dispute Act, 1947- It also prohibits discrimination against workers. For Ex.: discrimination against workers as they are members of some trade unions.

• Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013-This legislation is an outcome the Supreme Court’s decision in Vishakha v. the State of Rajasthan. The Act confers an obligation on the employer to provide measures for the prevention of sexual harassment at workplace and also for the mechanism for such dispute resolution.

• Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017- The Act prohibits dismissal of women for the reasons of maternity leave.

The process to bring a lawsuit against the employer for discrimination is as follows: (how to take legal action against employer in india)

• Talk to the employer – a victim of discrimination should converse with the employer about the discrimination and try to resolve the issue. Further, the matter should also be discussed with the HR and if it does not work then a formal complaint procedure should be followed.

• Assemble evidence- a record of all evidence, if possible with date and time which in your opinion were discriminatory and violation of your right should be maintained. The same should also be discussed with the HR.

• Talk to Co-employees and HR- The victim should then converse with the Co-employees seeking their support and also talk with the HR to understand the Company’s policy and your contract with the Company.

• Potential claims- The victim should go through various kinds of discrimination and decide the kind of discrimination (s)he has been put through. This needs to be done as the elements of such discrimination has to be proved.

• File a complaint against employer in India with EEOC (Equal Employment Opportunity Commission) or other state agency- they look and investigate into the matter, and then decide whether the policy should be changed or you should get damages.

• Filing of Civil Suit- If the victims think fit can also file the civil suit against the offender.

VERBAL ABUSE

When an employee is often addressed with negative and abusive language in front of the entire office. For ex: you are mocked in-front of everyone that makes you really uncomfortable and this amounts to verbal bullying. However, the Nagpur Bench of Bombay High Court has held that “the verbal abuse does not attract punishment not to be in public place inorder to attract”.

Provisions under which employees can be sued for Verbal Abuse are as follows: (legal action against employee)

Cases against verbal abuse can be brought under Indian Penal Code. The sections are:

Sec 506- here the proceedings can be brought up against criminal intimidation of which the imprisonment may extend to a period of two years with or without fine or both. (legal action against employee)

Sec 509 – here, if the words or acts of the employer reaches to the extent that it insults the modesty of women then proceeding can be brought under this section and the punishment here is simple imprisonment which may extend for a period of one year, with or without fine or both. (legal action against employee)

CONCLUSION 

Presence of above-mentioned laws and provisions under which the employer can be sued actually ensures the employee’s right to work with dignity at the workplace. However, to get the maximum benefit from the provisions a competent and experienced advocate must be hired as these cases are quite difficult to prove before the Court of law. Even before going for the litigation process one should think multiple times as the litigation process not involves huge expenditure but also a long time. In many cases, the employees are also terminated from the job and it becomes really hard for them to get another job.

Hope, from the above discussion, readers got answers to the questions such as, how to sue a company in india?, how to take legal action against employer in india?, can employee file case against employer? Can I take legal action against my employer? and how to file complaint in labour court against the employer?,

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