EXECUTIVE SUMMARY: Indian law prohibits working of female employees beyond permissible hours after 7:00 PM/8:30 PM/9:30 PM/10:00 PM in factories & commercial establishments. Indian law also lays down maximum permissible hours of work as well overtime hours in a day/week. It is to be understood that working beyond permissible hours can only be on rare occasions and not a norm. Any deviation from this requires prior permission of Govt. Authorities. Such permissions are conditional and impose restrictions and duties on the employer aimed at ensuring security of female employees. Arranging for secured transportation to female employees working beyond permissible hours is mandatory. Non-adherence of such conditions attracts penalties. In case a female employee becomes a victim of crime against her body because of such negligence on the part of the employer, management of the employer is exposed to criminal penalties.
- LEGAL PROVISIONS REGARDING WORK TIMINGS OF FEMALE EMPLOYEES IN FACTORIES & COMMERCIAL ESTABLISHMENTS
- Provisions pertaining to permissible working hours in a day/week; permissible spread-over of an employee in a day; total permissible overtime hours in day/week; intervals of rest etc. for manufacturing units are provided under Factories Act, 1948 and for commercial establishments in the respective State based Shop & Establishments Act. Each State has its own Factories Rules through which Factories Act is enforced.
- Section 66(1)(b) of Factories Act, 1948 prohibits women from being engaged in a factory from 7 PM till 6 AM. State Government through a notification in the Official Gazette may allow employees to work till 10 PM at night and begin work at 5 AM in the morning. Women working at fish curring and fish canning industries are exempted from these provisions. There are similar provisions in the Shops & Establishments Act prohibiting engagement of female employees during night time.
- Section 66(1)(b) of the Factories Act, 1948 has been declared as unconstitutional by the Madras & Gujarat High Court, as the same has been considered discriminatory and against Fundamental Right of equality enshrined under Article 15 of the Constitution. However, Kerala High Court has upheld the constitutionality. The Madras High Court laid down certain conditions for protection of women incase they are required to work beyond 10 PM, which includes protection against sexual harassment, separate transportation facility, separate canteen facility/restrooms, women to work in groups etc. However, Section 66 is valid in other states as on date preventing female employees from working after 7 PM in the evening till 6 AM in the morning.
- In case of commercial establishments the State Governments have been granting exemption to specific establishments or group of establishments, such as IT companies, Hotels, Media Companies etc., allowing them to engage female employees beyond permissible hours at night. These exemptions are conditional and employer needs to follows certain measures such as;
- Special arrangements should be made for protection of female employees working before 6 AM and after 8.30 PM including transport.
- Female employees should be provided job jointly or in group.
- Arrangement of rest rooms and lockers should be made for all women employees.
- No women employee shall be asked to come for night shift for more than 15 days.For both factories and commercial establishments maximum permissible working hours in day is capped at 9 hours and in a week is capped at 48 hours. Any work beyond these periods is classified as overtime for which an employee is entitled to be paid at twice the ordinary rates of wages. Any deviation from this would require prior intimation and confirmation of the relevant regulatory authority. Under no scenario in factories can the total number of hours of work in a week, including overtime, exceed sixty and in a quarter total number of overtime hours exceed 50. Each State Govt. has prescribed similar limits on overtime hours in commercial establishments.
- Similarly the spread-over of an employee in day whether in a factory or commercial establishment cannot be beyond 12 hours including intervals of rest in day under normal circumstances. Spread-over basically means the time period between commencement and termination of work. On certain days in year such as; year-end closing; financial year closing etc. spread over hours can be extended by taking prior permission of regulating authorities.
- CRIME AGAINST FEMALE EMPLOYEES AND LIABILITY OF EMPLOYER
Som Mittal v/s Govt. of Karnataka, Criminal Appeal No. 206 of 2008
- Pratibha Srikant Murthy, an employee of the Hewlett-Packard run business process outsourcing arm in Bangalore was allegedly raped and murdered by the driver of a vehicle leased by her employer. The Bangalore police had moved the Magistrate seeking to prosecute Som Mittal, former managing director of Hewlett Packard Global Software Ltd. The Magistrate took cognizance of the matter following which Mittal moved the Karnataka high court against this order. The high court dismissed his petition following which the Supreme Court was approached. A three-judge Bench headed by the Chief Justice of India, K G Balakrishnan rejected Mittal’s appeal in Criminal Appeal No. 206 of 2008. While dismissing his petition the Supreme Court stated that as the head of the company he was responsible for the safety and security of his employees.
- As Section 25 of Karnataka Shop and Commercial Establishments Act, 1961, no women is allowed to work in any establishment after 10 PM and before 6AM. Here the Company taking advantage of relaxation given by the State Government in its Official Gazette to employ women to work during night shifts for certain establishments including IT and ITES industry, employed women to work during second and third shift. The company failed to comply with the adequate safety and security measures drafted by Government in the same Gazette for women working during night shift.
- While confirming the death sentence of two of the accused involved in rape and murder of a Wipro BPO employee in Pune the Bombay High Court has opined that companies employing women to work late night shifts should ensure their safety.
Police directives to Employers
- Police has been informing employers about their duties especially for female employees working at night. In 2010 Police Commissioner S S Deswal of Gurgaon had sent letters to all BPOs in the city directing them to take necessary steps for protection of women, which included proper police verification of cab drivers, security in cabs, GPS enabled cabs, dedicated emergency hotline no. etc. The order was issued under Section 144 of Criminal Procedure Code and the employers violating the order are liable to be punished under Section 188 (disobedience of an official order) of Indian Penal Code which entails an imprisonment of up to six months or a fine of Rs.1,000 or both.
- Government machinery is keen to enforce working hours and in case of complaint by employee regarding late working hours, the enforcing agencies seek explanation. If there are regular breaches of provisions as to working hours, the employers are warned by the enforcing agencies. In the event of continued breaches, criminal proceedings can also be initiated.
- However, the issue of extra hours is quite different incase of female employees. There are no separate rules as to deployment of female employees for extra hours. The issue of working hours and particularly retaining female employees beyond normal working hours, may receive significant attention and can be a major issue for the organization if there is a case of sexual harassment or criminal assault.
- But even though State Govt. in its official Gazette, allowed women to work during night shifts in certain categories of establishments, the onus of responsibility lies on the employer to provide adequate security to women employees. The courts have in the past held that “Employer” which includes company management is responsible for any atrocities towards woman employees after leaving home for duty in company provided transport and till the time they return to their residence.
- In case of the Company and particularly the category of female employees who are the subject matter of the present note, are not covered by the definition of workmen under the Industrial Disputes Act. However, the relevant provisions of Shops & Establishment Act as well as the newly brought into effect Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 would be clearly applicable to such employees.
- Though law stipulates maximum working hours, all over India, employees are retained to work in case of urgency. Even in nationalized government owned banks, employees are retained beyond working hours during year-ends. There are provisions in settlement for compensation for such retention.
- In all the places where employees (male or female) are retained beyond working hours, employees are compensated for putting in extra hours.
- As far as risk of sexual harassment or criminal assault on employees after office hours, the same is monitored by adopting appropriate measures by respective employers and as laid down police authorities, courts, Govt. notifications.
- Irrespective of such concerns, most of the business establishments keeping of the requirement of the organization in mind are retaining employees beyond working hours. This is monitored very carefully and the person is held responsible for retention. On this background, there are few organizations they do not allow retention of female employees beyond office hours irrespective of work getting affected.
- As evident from the opinion of the Courts and Police authorities the responsibility of the safety of female employees engaged beyond permissible hours lies entirely on the employers and that too on the top management. Incase of any untoward incident against any female employees, and perceptible negligence by the employer, especially by not adhering to applicable laws/guidelines/notifications, the regulatory machinery may implicate the top management of company. Courts may as well be inclined towards granting of compensation to the victim/victim’s family u/s 357 of Criminal Procedure Code. If such a female employee has been constantly retained in the past after scheduled/permissible working, the same would aggravate the case against the employer.
4 WAY AHEAD FOR COMPANIES
- If a Company intends to retain female employees beyond normal working hours that too at night, the Company should seek appropriate exemption from the State Govt. in respect of the concerned provisions of the Shop and Establishment Act. Company then shall have to strictly adhere to the conditions laid down by the State Govt. in respect of such exemptions.
- Company shall also have to strictly adhere to maximum permissible working hours, overtime hours in a day/week and maximum spread-over in a day.
- Few guidelines that a Company may have to adhere to when arranging for transportation of female employees to and fro from their residences at night, when retained beyond permissible hours;
- A database of all employees, security personnel, cab drivers and of contractual workers should be maintained, for access by the police if required.
- Security and other contractual personnel should be hired from licensed agencies.
- Antecedents of all employees to be verified.
- A verified security guard to be present in a cab carrying women at night.
- Women should not be the first to be picked up or last to be dropped.
- The cab must drop women at their houses and waits till she confirms her arrival through a phone call.
- If the house of a woman employee is located away from a motorable road, the security guard should accompany her to her house and confirm her safe arrival.
- Exercise control on the vehicle’s movement to check any unwarranted activities of drivers, such as picking up strangers & straying from the designated route.
- Install GPS sets in the cabs.
4. A Company may also consider hiring additional resources in order to prevent retaining of female employees beyond normal working hours at night.