Work Timings for Female Employees Under Indian Employment Laws
EXECUTIVE SUMMARY: Indian law prohibits the employment of female employees beyond permissible hours after 7:00 PM/8:30 PM/9:30 PM/10:00 PM in factories and commercial establishments. Indian law also stipulates maximum permissible hours of work as well as overtime hours in a day/week. It is understood that working beyond permissible hours should only occur on rare occasions and not as a norm. Any deviation from this requires prior permission from government authorities. Such permissions are conditional and impose restrictions and duties on the employer aimed at ensuring the security of female employees. Arranging secured transportation for female employees working beyond permissible hours is mandatory. Non-adherence to such conditions attracts penalties. In case a female employee becomes a victim of a crime due to negligence on the part of the employer, the 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 a day/week; intervals of rest, etc., for manufacturing units are provided under the Factories Act, 1948, and for commercial establishments in the respective State-based Shop & Establishments Act. Each state has its own Factories Rules through which the Factories Act is enforced. Section 66(1)(b) of the Factories Act, 1948, prohibits women from being engaged in a factory from 7 PM till 6 AM. The 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 in fish curing and fish canning industries are exempted from these provisions. There are similar provisions in the Shops & Establishments Act prohibiting the engagement of female employees during nighttime.
Section 66(1)(b) of the Factories Act, 1948, has been declared unconstitutional by the Madras & Gujarat High Court, as it has been considered discriminatory and against the Fundamental Right of equality enshrined under Article 15 of the Constitution. However, the Kerala High Court has upheld its constitutionality. The Madras High Court laid down certain conditions for the protection of women in case they are required to work beyond 10 PM, which includes protection against sexual harassment, separate transportation facilities, separate canteen facilities/restrooms, and women working in groups, etc. However, Section 66 is valid in other states as of now, preventing female employees from working after 7 PM in the evening till 6 AM in the morning.
In the case of commercial establishments, the State Governments have been granting exemptions to specific establishments or groups 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 the employer needs to follow certain measures such as:
- Special arrangements should be made for the protection of female employees working before 6 AM and after 8:30 PM, including transport.
- Female employees should be provided jobs jointly or in groups.
- Arrangements for restrooms and lockers should be made for all women employees.
- No woman employee shall be asked to come for a night shift for more than 15 days.
For both factories and commercial establishments, the maximum permissible working hours in a day are capped at 9 hours, and in a week, they are 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 from 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, the total number of overtime hours exceed 50. Each State Government has prescribed similar limits on overtime hours in commercial establishments.
Similarly, the spread-over of an employee in a day, whether in a factory or commercial establishment, cannot exceed 12 hours, including intervals of rest in a day under normal circumstances. Spread-over basically means the time period between the commencement and termination of work. On certain days in the year, such as year-end closing, financial year closing, etc., spread-over hours can be extended by taking prior permission from 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 per Section 25 of the Karnataka Shop and Commercial Establishments Act, 1961, no woman is allowed to work in any establishment after 10 PM and before 6 AM. Here, the company, taking advantage of the relaxation given by the State Government in its Official Gazette to employ women to work during night shifts for certain establishments, including the IT and ITES industry, employed women to work during the second and third shifts. The company failed to comply with the adequate safety and security measures drafted by the Government in the same Gazette for women working during night shifts.
Wipro Pune
While confirming the death sentence of two of the accused involved in the 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
The police have been informing employers about their duties, especially for female employees working at night. In 2010, Police Commissioner S S Deswal of Gurgaon sent letters to all BPOs in the city, directing them to take necessary steps for the protection of women, which included proper police verification of cab drivers, security in cabs, GPS-enabled cabs, a dedicated emergency hotline number, etc. The order was issued under Section 144 of the Criminal Procedure Code, and employers violating the order are liable to be punished under Section 188 (disobedience of an official order) of the Indian Penal Code, which entails imprisonment of up to six months or a fine of Rs.1,000 or both.
Observations
The government machinery is keen to enforce working hours, and in case of a complaint by an employee regarding late working hours, the enforcing agencies seek an 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 in the case of female employees. There are no separate rules as to the 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 the State Government, 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 women employees after leaving home for duty in company-provided transport and until they return to their residence.
In the case of the company and particularly the category of female employees who are the subject matter of the present note, they are not covered by the definition of workmen under the Industrial Disputes Act. However, the relevant provisions of the 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 the 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 settlements 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 the 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 by police authorities, courts, and government notifications. Irrespective of such concerns, most business establishments, keeping the requirements 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 a few organizations that do not allow the 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 for the safety of female employees engaged beyond permissible hours lies entirely with the employers and, specifically, the top management. In case of any untoward incident against any female employee and perceptible negligence by the employer, especially by not adhering to applicable laws/guidelines/notifications, the regulatory machinery may implicate the top management of the company. Courts may as well be inclined towards granting compensation to the victim/victim’s family under Section 357 of the 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.
Way Ahead for Companies
If a company intends to retain female employees beyond normal working hours, especially at night, the company should seek appropriate exemption from the State Government regarding the concerned provisions of the Shop and Establishment Act. The company then shall have to strictly adhere to the conditions laid down by the State Government concerning such exemptions. The 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.
A few guidelines that a company may have to adhere to when arranging for transportation of female employees to and from their residences at night, when retained beyond permissible hours:
- A database of all employees, security personnel, cab drivers, and 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 should be verified.
- A verified security guard should be present in a cab carrying women at night.
- Women should not be the first to be picked up or the last to be dropped.
- The cab must drop women at their houses and wait until 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 over the vehicle’s movement to check any unwarranted activities of drivers, such as picking up strangers and straying from the designated route.
- Install GPS sets in the cabs.
A company may also consider hiring additional resources to prevent the retention of female employees beyond normal working hours at night.
Regards
From India, Kolkata
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163EXECUTIVE SUMMARY: Indian law prohibits the employment of female employees beyond permissible hours after 7:00 PM/8:30 PM/9:30 PM/10:00 PM in factories and commercial establishments. Indian law also stipulates maximum permissible hours of work as well as overtime hours in a day/week. It is understood that working beyond permissible hours should only occur on rare occasions and not as a norm. Any deviation from this requires prior permission from government authorities. Such permissions are conditional and impose restrictions and duties on the employer aimed at ensuring the security of female employees. Arranging secured transportation for female employees working beyond permissible hours is mandatory. Non-adherence to such conditions attracts penalties. In case a female employee becomes a victim of a crime due to negligence on the part of the employer, the 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 a day/week; intervals of rest, etc., for manufacturing units are provided under the Factories Act, 1948, and for commercial establishments in the respective State-based Shop & Establishments Act. Each state has its own Factories Rules through which the Factories Act is enforced. Section 66(1)(b) of the Factories Act, 1948, prohibits women from being engaged in a factory from 7 PM till 6 AM. The 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 in fish curing and fish canning industries are exempted from these provisions. There are similar provisions in the Shops & Establishments Act prohibiting the engagement of female employees during nighttime.
Section 66(1)(b) of the Factories Act, 1948, has been declared unconstitutional by the Madras & Gujarat High Court, as it has been considered discriminatory and against the Fundamental Right of equality enshrined under Article 15 of the Constitution. However, the Kerala High Court has upheld its constitutionality. The Madras High Court laid down certain conditions for the protection of women in case they are required to work beyond 10 PM, which includes protection against sexual harassment, separate transportation facilities, separate canteen facilities/restrooms, and women working in groups, etc. However, Section 66 is valid in other states as of now, preventing female employees from working after 7 PM in the evening till 6 AM in the morning.
In the case of commercial establishments, the State Governments have been granting exemptions to specific establishments or groups 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 the employer needs to follow certain measures such as:
- Special arrangements should be made for the protection of female employees working before 6 AM and after 8:30 PM, including transport.
- Female employees should be provided jobs jointly or in groups.
- Arrangements for restrooms and lockers should be made for all women employees.
- No woman employee shall be asked to come for a night shift for more than 15 days.
For both factories and commercial establishments, the maximum permissible working hours in a day are capped at 9 hours, and in a week, they are 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 from 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, the total number of overtime hours exceed 50. Each State Government has prescribed similar limits on overtime hours in commercial establishments.
Similarly, the spread-over of an employee in a day, whether in a factory or commercial establishment, cannot exceed 12 hours, including intervals of rest in a day under normal circumstances. Spread-over basically means the time period between the commencement and termination of work. On certain days in the year, such as year-end closing, financial year closing, etc., spread-over hours can be extended by taking prior permission from 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 per Section 25 of the Karnataka Shop and Commercial Establishments Act, 1961, no woman is allowed to work in any establishment after 10 PM and before 6 AM. Here, the company, taking advantage of the relaxation given by the State Government in its Official Gazette to employ women to work during night shifts for certain establishments, including the IT and ITES industry, employed women to work during the second and third shifts. The company failed to comply with the adequate safety and security measures drafted by the Government in the same Gazette for women working during night shifts.
Wipro Pune
While confirming the death sentence of two of the accused involved in the 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
The police have been informing employers about their duties, especially for female employees working at night. In 2010, Police Commissioner S S Deswal of Gurgaon sent letters to all BPOs in the city, directing them to take necessary steps for the protection of women, which included proper police verification of cab drivers, security in cabs, GPS-enabled cabs, a dedicated emergency hotline number, etc. The order was issued under Section 144 of the Criminal Procedure Code, and employers violating the order are liable to be punished under Section 188 (disobedience of an official order) of the Indian Penal Code, which entails imprisonment of up to six months or a fine of Rs.1,000 or both.
Observations
The government machinery is keen to enforce working hours, and in case of a complaint by an employee regarding late working hours, the enforcing agencies seek an 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 in the case of female employees. There are no separate rules as to the 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 the State Government, 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 women employees after leaving home for duty in company-provided transport and until they return to their residence.
In the case of the company and particularly the category of female employees who are the subject matter of the present note, they are not covered by the definition of workmen under the Industrial Disputes Act. However, the relevant provisions of the 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 the 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 settlements 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 the 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 by police authorities, courts, and government notifications. Irrespective of such concerns, most business establishments, keeping the requirements 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 a few organizations that do not allow the 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 for the safety of female employees engaged beyond permissible hours lies entirely with the employers and, specifically, the top management. In case of any untoward incident against any female employee and perceptible negligence by the employer, especially by not adhering to applicable laws/guidelines/notifications, the regulatory machinery may implicate the top management of the company. Courts may as well be inclined towards granting compensation to the victim/victim’s family under Section 357 of the 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.
Way Ahead for Companies
If a company intends to retain female employees beyond normal working hours, especially at night, the company should seek appropriate exemption from the State Government regarding the concerned provisions of the Shop and Establishment Act. The company then shall have to strictly adhere to the conditions laid down by the State Government concerning such exemptions. The 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.
A few guidelines that a company may have to adhere to when arranging for transportation of female employees to and from their residences at night, when retained beyond permissible hours:
- A database of all employees, security personnel, cab drivers, and 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 should be verified.
- A verified security guard should be present in a cab carrying women at night.
- Women should not be the first to be picked up or the last to be dropped.
- The cab must drop women at their houses and wait until 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 over the vehicle’s movement to check any unwarranted activities of drivers, such as picking up strangers and straying from the designated route.
- Install GPS sets in the cabs.
A company may also consider hiring additional resources to prevent the retention of female employees beyond normal working hours at night.
Regards
From India, Kolkata
Acknowledge(0)Amend(0)
Dear user,
Your question encompasses a wide range of important points in relation to the working hours of female employees under Indian employment laws. Here are the key points to consider:
1️⃣ Legal Provisions: As per the Factories Act, 1948 and the respective State-based Shop & Establishments Act, women are generally not allowed to work between 7 PM and 6 AM. However, there can be exceptions allowed by the State Government.
2️⃣ Court Orders: The High Courts of Madras and Gujarat have declared these restrictions as unconstitutional, placing the responsibility of women's safety on the employer, especially if they are required to work beyond 10 PM. However, the Kerala High Court upheld the restrictions.
3️⃣ Employer Responsibility: If female employees are required to work late or during the night, the onus is on the employer to ensure their safety. This includes providing protection against sexual harassment, separate transportation facilities, separate canteen/restrooms, and ensuring women work in groups.
4️⃣ Overtime Rules: The maximum permissible working hours in a day are capped at 9 hours and in a week at 48 hours. Any work beyond these periods is classified as overtime, which should be compensated at twice the ordinary rates of wages.
5️⃣ Safety Measures: Employers are also required to provide certain safety measures for women working beyond normal hours. This includes providing transportation, ensuring proper police verification of cab drivers, and setting up dedicated emergency hotlines.
6️⃣ Liability: If a female employee becomes a victim of a crime due to the employer's negligence, the management of the employer is exposed to criminal penalties. Top management can be held accountable for the safety and security of their employees.
🔍 Key Steps for Companies:
- Seek appropriate exemptions from the State Government if you intend to have female employees work beyond normal hours.
- Adhere strictly to the maximum permissible working hours and overtime rules.
- Implement and enforce comprehensive safety measures, including verified security personnel in cabs, GPS tracking, and ensuring women are not the last to be dropped off.
- Consider hiring additional resources to avoid requiring female employees to work beyond normal hours at night.
I hope you find this information useful. Please remember that it's always important to consult with a legal professional or expert in employment law to ensure compliance with all regulations.
From India, Gurugram
Acknowledge(0)Amend(0)
Your question encompasses a wide range of important points in relation to the working hours of female employees under Indian employment laws. Here are the key points to consider:
1️⃣ Legal Provisions: As per the Factories Act, 1948 and the respective State-based Shop & Establishments Act, women are generally not allowed to work between 7 PM and 6 AM. However, there can be exceptions allowed by the State Government.
2️⃣ Court Orders: The High Courts of Madras and Gujarat have declared these restrictions as unconstitutional, placing the responsibility of women's safety on the employer, especially if they are required to work beyond 10 PM. However, the Kerala High Court upheld the restrictions.
3️⃣ Employer Responsibility: If female employees are required to work late or during the night, the onus is on the employer to ensure their safety. This includes providing protection against sexual harassment, separate transportation facilities, separate canteen/restrooms, and ensuring women work in groups.
4️⃣ Overtime Rules: The maximum permissible working hours in a day are capped at 9 hours and in a week at 48 hours. Any work beyond these periods is classified as overtime, which should be compensated at twice the ordinary rates of wages.
5️⃣ Safety Measures: Employers are also required to provide certain safety measures for women working beyond normal hours. This includes providing transportation, ensuring proper police verification of cab drivers, and setting up dedicated emergency hotlines.
6️⃣ Liability: If a female employee becomes a victim of a crime due to the employer's negligence, the management of the employer is exposed to criminal penalties. Top management can be held accountable for the safety and security of their employees.
🔍 Key Steps for Companies:
- Seek appropriate exemptions from the State Government if you intend to have female employees work beyond normal hours.
- Adhere strictly to the maximum permissible working hours and overtime rules.
- Implement and enforce comprehensive safety measures, including verified security personnel in cabs, GPS tracking, and ensuring women are not the last to be dropped off.
- Consider hiring additional resources to avoid requiring female employees to work beyond normal hours at night.
I hope you find this information useful. Please remember that it's always important to consult with a legal professional or expert in employment law to ensure compliance with all regulations.
From India, Gurugram
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