As has been stated earlier, employees who are covered under the definition of ‘Workman’ can take recourse to the machinery provided under the Industrial Disputes Act, 1947 against employers to assert their rights. However, a large number of persons engaged in jobs particularly in the IT sector and even the service sector may not come within the definition of ‘workman’, therefore the machinery provided under Industrial Disputes Act, 1947 is of no help to these employees, seeking recovery of their dues or damages from their employers. Recently with the clarification given by the Tamil Nadu government, wherein IT employees are free to form unions and with the High Court recognizing and IT employee as workman, things might slowly change the scenario.
There are a few legislations where both workmen and employee are covered and thus the redressal machinery provided therein serves to secure the rights of both workmen and employees. Employees can approach the machinery under Payment of Gratuity Act, 1972 with regards to any issues related to the payment of Gratuity. The definition of ‘employee’ under the Payment of Gratuity Act, 1972 is elaborate, therefore an employee, disticnt from the definition of workman may still approach the authority under the Act against his employer. Similarly, in case of injury or death during the course of employment, an employee, though may not be covered under the definition of ‘workman’ can approach the machinery under Employees Compensation Act, 1923 to recover compensation provided under the Act. Schedule II of the Act and particularly (ii) can be interpreted liberally and employees who are otherwise not covered under the definition of ‘workman’ in factory, can be covered by Schedule II (ii) of the Act. The employees employed in shops and establishments and various other establishments and provided in Schedule II can also be covered under the Employee Compensation Act .
However, there are massive risks associated with proceeding legally against your employer.
Stigmatic relieving letters is another matter of vast consequence. Not only is a letter with a negative opinion about an exiting employee deterimental to his career, but it also reflects badly on the HR practices adopted in a Company. Though is case specific , nevertheless, it is a good practice for Companies to carry out proper and thorough investigation before implicating an exiting employee and issuing him a stigmatic relieving letter (which should be the last resort). Read here and here the pronouncement of Courts and the present position of law on disputes between employers and employees and stigmatic relieving letters.