Experts said that there is no specific law in India regarding dual jobs for IT professionals or people working in administrative/supervisory positions. Moneycontrol has spoken to a few corporate lawyers to clear the picture on the issue.
Wipro employees fired over moonlighting While some companies have adopted the practice of moonlighting that was prevalent during the pandemic, some have laid off employees.
However, experts said that there is no specific law in India regarding dual jobs for IT professionals or people working in administrative/supervisory positions. Moneycontrol has spoken to a few corporate lawyers to clear the picture on the issue.
No restriction in Indian law
Simply put, moonlighting is not strictly prohibited under the law in India, as it is not explicitly mentioned in the law books. However, it has a screw on it. Section 60 of the Factories Act 1948 prohibits two employments on adult workers in factories.
In such a situation, the question arises that who is a worker or workman? According to the Industrial Disputes Act 1947 or the Industrial Relations Code 2020, a worker means a person who works in an industry for a reward, whether the conditions are stated or unclear.
‘Workman’ is a broad term and mainly includes all workers except in managerial or administrative, supervisory capacity. However, there is no clarity on the inclusion of IT workers under Workmen.
Depends on contract of employment
Aditya Chopra, managing partner, Victoria Legal – Advocates & Solicitors told Moneycontrol, even though many employers’ contracts of employment mention a ban on dual employment, including a bar on joining a competitor, not working for another employer at rest time. However, it is still a vague term for employment.
He said that there are similar rules in the Bombay Shops and Establishment Act, 1948 and Delhi Shops and Establishment Act 1954 in other states, which ban two jobs.
“This means that even though moonlighting is not completely banned in India, it is an act punishable by dismissal of an employee for breach of contract,” Chopra said.
What about consultants and advisors etc.
In the case of employees who have obtained a service certificate under the Industrial Employment Standing Order Act, 1946 covering the IT and ITeS sectors, Chopra said, “It states that such employee shall be entitled from the date of commencement of employment to the last date of employment. Engaged with the employer for profit. Every employee to obtain a service certificate has to comply with the mentioned conditions.
What options do Wipro employees have?
Suyash Srivastava, partner, DSK Legal, on the sacking of 300 employees from Wipro, said, “If the contract is exclusive and the employee is working without the company’s consent, then action can be taken.”
However, the fired employee can claim unlawful termination if they have not committed any breach of contract with the company. “They must maintain that they were not expressly prevented by the contract of employment from seeking employment elsewhere outside the company,” Chopra said. He said that a person can claim to have worked personally outside his job and thus does not fall into the two jobs i.e. Moonlighting.
If all the conditions are fulfilled, Srivastava said, the dismissed employees can demand reinstatement with salary, terming the dismissal as arbitrary and illegal, unfair labor practice.
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