For non-workmen category employees, termination takes place as per the statutory state-
specific notice requirements, the employee’s contract, and the establishment’s HR policies, as
there is no central law which applies to termination of non-workmen.
If an employee (including non-workmen) files a claim for unlawful termination of
employment and is successful, the court may direct any or all of the following:
• Reinstatement of the employee.
• Payment of back wages.
• Compensation.
Indian courts are typically pro-employee. Therefore, Indian employers should be meticulous
with their documentation as evidence or proof on record relating to employment termination.
1. Civil Court
Case can be filed in Civil Court as the employee here is not a workman.
Premier Automobiles Ltd v. Kamlekar Shantaram Wadke Of Bombay (1976) SC: When
determining the appropriate jurisdiction in the context of workers, the Supreme Court has
held that civil courts will have jurisdiction if the dispute is not an ‘industrial dispute’ and, or,
does not relate to enforcement of rights granted under industrial laws.
2. Contracts Act & Specific Relief Act
If termination is wrongful employee can sue for breach of employment contract or company
policy.
The position at Indian law with respect to specific performance of employment contracts or
reinstatement is well settled as far as concerns employees. Indian courts have held that, based
on the provisions of the Specific Relief Act, 1963 in context of private employment, even if
the termination of employment is wrongful (contrary to terms of employment), the former
employee may only claim damages and no relief of specific performance can be granted as an
employment contract is: (i) a contract of personal service; and (ii) typically determinable by
providing a prescribed period’s notice.
3. Karnataka Shops & Establishments Act
Section 2 (g) “employee” means a person wholly or principally employed in or in connection
with, any establishment whether working on permanent, periodical, contract or piece-rate
wages, or on commission basis, even though he receives no reward for his labour and
includes an apprentice, any clerical or other member of the staff of a factory or industrial
establishment who falls outside the scope of the Factories Act, 1948, but does not include a
member of the employer's family; and “employed” shall be construed accordingly;
Section 2 (h) “employer” means a person having charge of or owning or having ultimate
control over the affairs of an establishment and includes members of the family of an
employer, a manager, agent or other person acting in the general management or control of
an establishment;
Section 2 (i) “establishment” means a shop or a commercial establishment; Section 39 (2)
An employee removed or dismissed under sub-section (1) shall have a right of appeal to
46[such officers having jurisdiction over such areas or such classes of employees as may be
prescribed] on the ground that there was no reasonable cause for the removal or dismissal or
that he has not been guilty of misconduct as held by the employer.
Section 39 (2) An employee removed or dismissed under sub-section (1) shall have a right of
appeal to [such officers having jurisdiction over such areas or such classes of employees as
may be prescribed] on the ground that there was no reasonable cause for the removal or
dismissal or that he has not been guilty of misconduct as held by the employer.
(3) Where an employee has been removed or dismissed without reasonable cause or without
proof of misconduct, the employee shall, where the employer does not agree to reinstate him,
be entitled to such compensation as the appellate authority may determine, provided that
such compensation shall not exceed an amount calculated at one month's pay for every year
of service
(4) Any person aggrieved by an order of the appellate authority may apply to the District
Judge for a revision of such order and subject to the result of such application the decision of
the appellate authority shall be final and binding on both the employer and the person
employed.
Per the Amending Act 36 of 1966, as no authority is prescribed, the appeal shall lie to the
Commissioner or Labour.
4. Companies Act, 2013
Can file for breach of Companies Act 2013, Section 177(9) and (10), which state;
(9) Every listed company or such class or classes of companies, as may be prescribed, shall
establish a vigil mechanism for directors and employees to report genuine concerns in such
manner as may be prescribed.
(10) The vigil mechanism under sub-section (9) shall provide for adequate safeguards
against victimisation of persons who use such mechanism and make provision for direct
access to the chairperson of the Audit Committee in appropriate or exceptional cases:
Provided that the details of establishment of such mechanism shall be disclosed by the
company on its website, if any, and in the Board‘s report.
The grounds here would be that the vigil mechanism here does not comply with sub section
10.
