Necessity of Contracts of Employment

“…..On July 16, 2004 when he was stationed in Hong Kong and was still serving with the Company an obvious breach of employment contract was committed by the appellant. Thus, the Plaintiff Company on May 28, 2005, filed a Civil Suit (OS)...”[1]

“Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment.”[2]

“Termination or dismissal of a pure contract of master and servant is not null however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages.”[3]

A perusal of the above 3 paragraphs which are excerpts quoted from landmark cases of Indian Employment Law will reveal two things they share in common:

1. A contract of employment existed between employer and employee.

2. There was a breach of the aforementioned contract of employment resulting in litigation.

Naturally, it may appear that all employees and employers must then have a valid written contract of employment so that their respective interests are protected. However, according to Indian Law there exists no such compulsion. The law indicates that there is no need for a contract of employment to exist between the employer and employee. Before delving into why that is problematic, let us understand what typically forms a part of a contract of employment.

A contract of employment, much like any other contract described under the Indian Contract Act, 1872 is a bilateral agreement. The prerequisites of a valid contract like offer[4], acceptance[5], consideration[6], competent parties[7], legal object[8]and free consent[9] are all necessary for the formation of an employment contract. There are several laws governing the relationship between the employer and employee besides the Indian Contract Act, 1872, Specific Reliefs Act, 1963, The Industrial Disputes Act, 1947, the Factories Act, 1948, Trade Unions Act, 1926, Minimum Wages Act, 1948 and nearly 50 other national legislations to govern the employment sector. This list is not inclusive of the 200 other State legislations like the Karnataka Shops and Establishments Act, 1962.

Any contract of employment must be made with the provisions of these laws in mind although the labour laws in India have been criticized as being overly inflexible. [10]

Acts that regulate conditions of work are:

● Factories Act, 1948

● The Contract Labour Act (Regulation and Abolition) Act, 1970

● Shops and Commercial Establishments Act (in various states)

Acts that regulate Wages and Remuneration are:

● Minimum Wages Act, 1948

● Payment of Wages Act, 1936

Acts that provide social security are:

● Employees Provident Fund Act, 1952

● Workmen’s Compensation Act, 1923

● Employees State Insurance Act, 1948

Acts that provide employment security and industrial relations are:

● Industrial Disputes Act, 1947

● Industrial Establishments (Standing Orders) Act, 1946

These are among many of the legislations that govern the employment sector and contracts of employment that are created need to adhere to these regulations as and when they are applicable.

Typical clauses in a contract of employment include the details with respect to a person’s employment. In other words, the terms and conditions which need to be abided by both the employer and the employee. These include but are not limited to the following:

● Rate of pay

● Hours of work

● Duties pertaining to the job

● Benefits provided

● Job procedure involved

● Termination requirements if employee/employer wishes to end the contract

● Notice clause must include certain details such as the amount of notice period to be served by the employee and compensation to be paid upon such termination

● Grievance procedures in case of wrongful dismissal

● Overtime requirements and extra pay

● Confidentiality and nondisclosure clauses (Signing a nondisclosure agreement means that disclosure of company information or misuse of that information will lead to a contract breach. The Indian Penal Code and the Information Technology Act, 2000 provides for Criminal prosecution and imprisonment or fine (or both) as consequences for breach of confidentiality and disclosure provisions. The Information Technology Act, 2000 under Section 66(e) talks about the punishment for violation of privacy policy and various other related acts such as tampering with computer source documents (Section 65), hacking (Section 66) etc.)

● Length of the employment term and leave (along with the date of hire and date of termination)

● Non-compete clauses (These cannot be enforced in India after the term of employment is completed. This is described in section 27 of the Indian Contract Act. According to this, a contract whose object is restraint of trade is prima facie void. However, restrictive covenants applicable during the employment can be questioned on the ground that they are unreasonable. [11]In the famous case of Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co. Ltd. (1894), it was held that both general and partial restraint of trade are prima facie void. Article 21 of the Constitution of India also guarantees the right to livelihood.)

● Non-solicitation clauses are usually included in a noncompete and will be governed by the same rules.

In India, there is no compulsion for a written agreement to exist between an employer and employee. According to the Indian Contract Act, 1872 even an oral agreement can have legally binding effects and can be considered to be contractual. However, it is a lot more difficult to prove an oral agreement in a court of law and hence written agreements are preferred in the organized sector. In saying that, it must be noted that most contracts of employment are framed by the employer and will more often than not, work in their favour. It is now commonplace to include restrictive covenants in contracts of employment. In order to protect the employer, these covenants circumscribe the permissible range of actions of the employee. Damages could be provided for breach of a contract of employment. These are the reparations enforced by the court that the party wronged is entitled to in case any terms of the contract are not kept.

When the employer breaches the contract of employment:

Employees generally get compensatory damages if the employer breaks an agreement and it is proved in court. This implies the person in question gets monetary reparations equivalent to what in particular would have been gotten if the agreement was not broken. Typically, the employer is answerable for addressing out the full cost of the agreement.

When the employee breaches the contract of employment:

At the point when an employee breaks the contract, the employer likewise gets compensatory damages determined by deciding the expense to supplant the employee above what it would have cost for that person to complete out the agreement as initially concurred. In the event that the employee can be substituted with another who will accomplish the work for a similar value, the court will ordinarily give the employer limited damages.

Although it is clear that there are very many laws in place for the protection of the worker, the contract will typically be framed by the employer and it is the employee’s duty to be aware in order to protect themselves from exploitation.

A common clause dealing with future termination of employment, “without cause” is usually woven into an offer letter. This hidden clause has caused the Supreme Court of Canada has commented on the bargaining relationship between prospective employees and future employers in the following terms: “The terms of the employment contract rarely result from an exercise of free bargaining power in the way that the paradigm commercial exchange between two traders does. Individual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions than those offered by the employer, particularly with regard to tenure.”[12]

What about the unorganized sector?

The next question that arises is that if there is no contract then how can it be enforced? The workers of the unorganized sector are left without any protections as there is largely only a verbal agreement between the employer and employee.

Unaware of the numerous legislations in place for their benefit or the terms of the employment contract (if it even exists) leaves these workers completely exposed. The legislature simply makes these laws. Actual implementation does not happen due to the lack of awareness and the judiciary is unable to reprimand or give compensation as and when necessary. It is for this reason that it is extremely difficult to find case law to substantiate the presence of unfair practices. In such a scenario, employers could put hidden clauses which are detrimental to the interests of their employees and such ambiguity in the contracts in the unemployed sector are simply because people are not aware about their rights. Since oral agreements are also enforceable but nearly impossible to prove in a court of law, people who do manual labour such as work at construction sites could be promised proper sanitation facilities and certain wages which will be communicated to them but due to the lack of knowledge and absence of a legal document backing the same this does not translate into reality. Thus, this ambiguity can cause grave problems to the workers.

These kinds of cases are rarely reported since people are not aware of their rights. It is high time that the government actively gets involved in the employment sector and creates awareness among the employees of their own rights.

To summarize, in order for litigation to occur in employment law there must be one of two things, an act made impermissible by any of the abovementioned employment legislations which is committed by the employer/employee or a breach in the contract of employment by the employer/employee or both. The former can be facilitated if there is a knowledge of the law and such unfair practice is reported so redressal can be obtained. Whereas the latter can occur only if a written contract of employment exists between the employer and employee. In cases where there is neither, there is oppression of the working class. The only plausible solution to this problem is if it is made mandatory for employers to provide a contract of employment to the employee and awareness on the necessity of the contract and a clear understanding of the terms of the contract is provided by the employer or by a governmental authority as deemed fit on a case-to-case basis.

If written employment contracts are made mandatory another problem may surface. According to Section 11 of the Indian Contract Act, only a person who has attained the age of majority is competent to contract. While person’s below 14 cannot be employed except in very specific circumstances, adolescents between the ages of 14-18 can be employed. Although the law strictly prohibits them from working in a particular list of non-industrial and industrial processes, such as mines or places which use inflammable substances or explosives, firework shops, slaughter houses, food processing industry, etc., they are allowed to work in other sectors and if the government does decide to make written contracts mandatory, it would also have to amend this law or the Indian Contract Act accordingly.

A spelt out contractual agreement is beneficial to both employer and employee. It illuminates the advantages and commitments of each party, ensures the professional stability of the employee and shields the employer.

[1] Laxman Prasad v. Prodigy Electronics Ltd. & Anr. (2008) 37 PTC 209 SC. [2] Executive Committee of Vaish Degree College Shamli & Ors V. Lakshmi Narain & Ors AIR 1976 SC 888. [3] Sirsi Municipality v. Cecelia Kom Francis Tellis AIR 1973 SC 855. [4] Indian Contract Act, 1872, s. 2(a). [5] Indian Contract Act, 1872, s. 2(b). [6] Indian Contract Act, 1872, s. 2(d). [7] Indian Contract Act, 1872, s. 11. [8] Indian Contract Act, 1872, s. 23. [9] Indian Contract Act, 1872, s. 14. [10] Udit Misra, Nushaiba Iqbal, “Explained: What labour law changes by states mean”, Indian Express, May 16, 2020. [11] Avinash Govindjee and Sairam Bhat, “Restrictive Covenants in Employment Contracts: A Comparison between the Legal Positions in India and South Africa” 20 National Law School of India Review 1(2008). [12] Norman Grossman, “The hidden clauses concealed in job offers that can haunt you later”, available at https://careers.workopolis.com/advice/the-hidden-clauses-concealed-in-job-offers-that-can-haunt-you-later/ (last visited on 17-01-2021).