In common parlance, the term ‘double employment’ might be considered to mean holding two jobs. However, in terms of labour laws in India, the Factories Act and the Shops and Establishments Acts of each State, govern ‘double employment’, and indicate the meanings if the term. However, curiously enough, the meaning of ‘double employment’ in the Factories Act differs from that contained in the Shops and Establishments Acts.
The Factories Act states ‘double employment’ to mean working in a factory on the same day on which the worker has already worked in another factory. Section 60 of the Act in effect provides that no adult worker shall be required or allowed to be engaged in such double employment, save in prescribed circumstances (to be prescribed by each State Government). The language of the Section seems to cast a duty on the part of the employer, or in the case of a factory, the occupier and manager of the factory, to ensure that there is no double employment.
On the other hand, the Shops and Establishments Acts speak of double employment differently. For example, the Bombay Shops and Establishments Acts, 1948, provides in Section 65 that no employee shall work in any establishment, nor shall any employer permit an employee to work in any establishment, on a day on which the employee is given a holiday or is on leave as per the Act. It is evident that ‘double employment’ in the aforesaid Act is very different from the meaning of the term in the Factories Act. Also, the Shops & Establishment Acts also place an obligation directly on the employee not to work on holidays or when he is on leave, though the obligation is also on the employer not to permit such double employment.
Although the Shops & Establishments Acts portray double employment to mean employment in the same establishment on holidays and leaves, it is a generally accepted principle that if an employee extends his services to any other establishment without seeking permission of the establishment in which he is primarily employed, it is to be considered as an act subversive of discipline thereby inviting disciplinary action against employee, even if such services are extended after working hours of the primary establishment. Such provisions tend to be incorporated in the service conditions or employment agreement of the employees.
Though the Factories Act and the Shops & Establishments Acts interpret ‘double employment’ differently, the intent behind these Indian employment laws can be taken to be the same. Man is not a machine, and working for 8 hours or more a day cannot be sustained indefinitely without consequences, possibly very serious consequences. In a recent case before the Kerala High Court, a bus driver had a heart attack while on the job. The same was not occasioned by any immediate stimulus; he simply had a heart attack and died. The High Court upheld the claim of compensation by the legal heirs of the driver, saying that the job of driving leads to stress and strain, and since the driver had no history of heart disease, and died while he was practically on the seat of his vehicle, he had accordingly died in the course of employment, and hence the employer, or in this case the insurer, was liable to give compensation National Insurance Co. Ltd. v. P.V. Sheeja & Ors. (M.F.A. (WCC) No. 59 of 2007, decided on 21.07.2011).
The concept of limited working hours in a day and week is one which has global consensus and following. The International Labour Organisation established this general rule through its Hours of Work (Industry) Convention, 1919, and adopted certain proposals for applying the principle of the 8-hours day or of the 48-hours week. India, then under British Rule, ratified this Convention on 14.07.1921.
Apart from the health aspect, a worker must be given time to attend to his familial and social obligations, and undertake any leisurely or social activity, or generally do what he will in the free time given to him. This serves to alleviate work pressure and allows the worker to be mentally and physically prepared for his work.
Since the worker is expected to work with dedication for his employer, family tensions, tendencies to drink excessively or gamble, or taking up work elsewhere can easily affect the working of the worker for his employer. Hence, double employment or taking up work elsewhere apart from the primary employer can constitute misconduct and grounds for disciplinary action. However, the employer must be vigilant to ensure that double employment within the meaning of either the Factories Act and the Shops and Establishments Acts does not take place, since obligations are placed on the employer, and failure to show that reasonable precautions have been taken to prevent double employment could prejudicially affect an employer’s case of misconduct on the part of the worker/employee.
As a practice, an employer should inform workers and employees through means normally adopted by the employer to give information to all employees (such as the notice board, office policies, office memos, on the website of the employer, etc.) that as a policy, the employer factory / establishment does not authorize any employee to accept employment or even honorary work for remuneration / honorarium unless written permission of the Management is obtained. This can keep the worker and employees aware of the policies and also serves as a necessary protection to the employer from issues in this regard.
– Ronojoy Basu