Labour and Employment

Atul GuptaPartner

Parvathy TharamelCounsel

Tania GuptaAssociate

Key Developments

• Telangana Government allows women to work night shifts

  The Telangana Shops and Establishment Act, 1988 restricts employers from engaging women in night shifts between 8:30 pm to 6:00 am. On 17 October 2022, a notification was issued (2022 Notification), exempting all establishments in Telangana from this restriction, thereby allowing all women employees to work in night shifts, subject to certain conditions:

  • Employers to obtain written consent of women employees to work in night shifts;
  • Women employees to be engaged in night shifts on rotation basis with at least five of them engaged together at a time;
  • Employers to ensure safety and security and provide shelter, rest rooms, lunch rooms, night creches, etc;
  • Employers to ensure adequate protection of women employees’ privacy, dignity, honour, safety as well as protection from sexual harassment;
  • Employers to post adequate number of security guards during night shifts;
  • Employers to arrange transport facility for woman employees from residence to the workplace and back. Other checks and balances for safety during the travel have also been prescribed;
  • The exemption is not applicable to women employees during the period of 16 weeks before and after childbirth (of which at least eight weeks shall be before the expected childbirth).

  Failure to comply with the above conditions may lead to cancellation of the registration certificate of the establishment and/or withdrawal of such exemption. The Government of Telangana had previously issued a notification in 2019 (2019 Notification) granting a conditional exemption only to IT/ITES companies in Telangana and allowing them to engage women employees in night shifts, which is valid till 30 May 2023. While the exemption granted through the 2019 Notification requires IT/ITES companies to ensure safe transport facilities (similar to those prescribed by the 2022 Notification), there is no obligation to obtain consent of women employees. Since IT/ITES companies are already exempt till May 2023, we believe that currently there's no requirement to obtain consent of women employees. In case the exemption for IT/ITES companies is not renewed upon its expiry, in the future, IT/ITES companies in Telangana too may need to obtain consent to engage women in night shifts, under the 2022 Notification.

• Delhi court holds that ‘f*** off’ is a sexually coloured remark

  In the case of Tausif-ul Hassan v The State (Govt. of Delhi), an Additional Sessions Judge, Delhi, observed that ‘f*** off’ is a 'sexually coloured' remark and upheld the sexual harassment charges against the respondent who threatened a woman by using this phrase. The petitioner had argued that the phrase meant to ‘leave’/‘go away’, but the Court held that it is an abusive, offensive and humiliating phrase in context of the case and is not used in Indian society to imply ‘leave’/‘go away’. The Court further held that based on the facts and circumstances of the incident it cannot be said that the petitioner was merely intending to ask the complainant to ‘leave’/‘go away’ and the petitioner used it with an intent to insult the modesty of the complainant. Employers must take note of the Court’s observations and advise employees of the implications of the use of such language, in their statutorily mandated employee trainings.

• Supreme Court upholds Employees’ Pension (Amendment) Scheme, 2014 subject to certain conditions for employees’ benefit

  On 4 November 2022, the Supreme Court in Employees’ Provident Fund Organisation v Sunil Kumar B. & Ors. (2022 Ruling) upheld the Employees’ Pension (Amendment) Scheme, 2014 (2014 Amendment). This ruling overrides the earlier judgement of the Supreme Court in 2019 (2019 Ruling), where it had upheld Kerala High Court's decision in P. Sasikumar and Ors. v Union of India and Ors. (Kerala HC Ruling) which had set aside the 2014 Amendment.

  The Employees’ Pension Scheme (EPS) was formulated in 1995 and it provided that of the 12% of employer’s contribution under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act), 3.67% will be made to the provident fund account under the Employees’ Provident Fund Scheme (EPF Scheme) and 8.33% to the pension account under the EPS. The maximum pensionable salary under EPS was INR 5,000 per month (raised to INR 6,500 subsequently).

  The 2014 Amendment introduced certain critical amendments. While the 2014 Amendment increased the maximum pensionable salary to INR 15,000 per month (from the earlier threshold of INR 6,500 per month), it excluded all new members who earned above this sum from pension completely, i.e., the entire 12% of the employer contribution for such employees would go into the provident fund account under the EPF Scheme and 8.33% would not be deposited into the pension account under the EPS. Further, it allowed all existing EPS members a time period of 6 months to opt-in for continued contributions to the EPS at a higher salary. Those who did not exercise this option within 6 months would not be able to continue to contribute to the EPS on higher salaries (i.e., pension contributions would be limited to 8.33% of INR 15,000 and the balance would be diverted to the EPF Scheme). The 2014 Amendment also required members opting to deposit pension on their actual salary (above the revised pensionable salary threshold of INR 15,000) to contribute an additional 1.16% of the excess salary to the EPS.

  The Supreme Court in the 2019 Ruling reaffirmed the Kerala HC Ruling that struck down the 2014 Amendment. Consequently, new members covered under the EPF Act remained eligible to contribute to the EPS even if they earned above the INR 15,000 threshold, and existing and new members could choose to contribute into their pension fund at their uncapped salary without the additional 1.16% cost burden. Further, the basis for calculation of pensionable salary would remain the salary received over the last 12 months, instead of 60 months preceding the date of exit from the EPS as proposed by the 2014 Amendment. While the 2019 Ruling did appear to be a positive measure for employees, promising them higher pension payment, it was criticised for not taking cognizance of the fact that the EPFO may actually not be able to bear the additional cost burden associated with higher pension contributions. The 2014 Amendment had attempted to limit the member base of the pension scheme, which was undone by the Supreme Court ruling, thereby expanding the pension membership, including to high income individuals.

  Recently, in the 2022 Ruling, the Supreme Court clarified various aspects of the EPS and held that the 2014 Amendment is valid, while reading down certain provisions of the amended scheme, as discussed below:

  • Employees who were members of the EPS (and had exercised the option to contribute on the actual salary) and continued to be in service on 1 September 2014, can continue to exercise the option to contribute 8.33% of their actual salary as against 8.33% of the pensionable salary capped at INR 15,000 per month;
  • The deadline for existing members of the EPS (as of 1 September 2014) to opt-in to contribute on their higher salary under the amended scheme has been extended by a period of four months from the date of its order, for employees who hadn’t exercised this option earlier;
  • Employees who had retired prior to 1 September 2014 without exercising this option, will not be entitled to the benefit under the 2014 Amendment;
  • The requirement to contribute at 1.16% of the excess salary as an additional contribution has been held invalid and ultra vires the EPF Act. However, the operation of this part is suspended for six months to enable the authorities to make adjustments in the scheme so that additional contribution can be generated from some other source within the scope of the EPF Act, which could include enhancing the rate of contribution of the employers.

  The EPFO on 29 December 2022 issued a notification setting out instructions for the implementation of the Supreme Court's directions. These include allowing the eligible pensioners an option to apply digitally on the EPFO website to validate their options by the concerned regional office.

  The notification also sets out the manner in which the regional PF commissioner will deal with the application forms as well as the process and manner for redressal of any grievances raised by the applicants.

  Practical issues remain however with concerns arising that the EPFO notification is not fully aligned with the 2022 Ruling and certain section of pensioners who are entitled to benefit from the ruling are not yet in a position to validate their options.

• Revised guidelines for international arrivals in India

  In light of the increase in Covid-19 cases in certain countries across the world, the Ministry of Health and Family Welfare on 29 December 2022 issued revised Guidelines for International Arrivals (Guidelines) effective from 1 January 2023.

  The important measures implemented through these Guidelines include:

  • All travellers should preferably be fully vaccinated;
  • Passengers arriving from high-risk countries such as China, Thailand, etc., are also required to submit the following on the Air Suvidha portal - (i) a self-declaration form; (ii) a negative RT-PCR report (of test conducted within 72 hours prior to the journey); (iii) a declaration regarding the authenticity of the RT-PCR report and if it is found otherwise, passengers will be liable for criminal prosecution; and (iv) an undertaking through the concerned airlines that they will abide by the decisions of the appropriate government authority regarding any post arrival requirement;
  • In-flight announcement shall be made in flights and at all points of entry about the ongoing Covid-19 pandemic including precautionary measures to be followed (preferable use of masks and physical distancing);
  • Any passenger showing symptoms of Covid-19 is required to wear a mask, be isolated from other passengers in flight and be shifted to an isolation facility subsequently for follow up treatment;
  • De-boarding shall be done while ensuring physical distancing;
  • Thermal screening shall be done for all passengers by the health officials present at point of entry;
  • Passengers found to be symptomatic during screening shall be immediately isolated and taken to a designated medical facility as per health protocol;
  • Random post-arrival testing of passengers (identified by the airlines) in the airport will be carried out;
  • All travellers shall self-monitor their health post arrival and report to their nearest health facility or call National helpline number/State Helpline Number in case they have any symptoms.

In the coming months, we expect more information on the implementation of the new labour codes. The central government has been posed with questions regarding the anticipated date of the implementation of the labour codes as well as the benefits they will bring for the employees. While the government has provided updates on the progress of the codes, we await more clarity on their effective enforcement.

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