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Inde - Conditions de fond du licenciement

Conditions de fond du licenciement (motifs autorisés et prohibés) - Inde - 2019    

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Obligation d'informer le travailleur des raisons du licenciement : Oui
  • Sec. 13 MSO and Sec. 25F IDA.
    NOTE: The Model Standing Orders (MSO) are a default not a mandatory rule i.e. the employer may adopt them as provided but employers are permitted to derogate/amend them on a case by case basis.

Motifs autorisés (licenciement justifié) : conduite du travailleur; motifs économiques
  • Sec. 150B IDA reads as following:

    "1*[(oo)"retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
    (a) voluntary retirement of the workman; or
    (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
    2*[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
    (c) termination of the service of a workman on the ground of continued ill-health;] "

    Sec. 17 MSO provides for an exhaustive list of the instances when dismissal for the reasons of misconduct is justified:

    (a) Theft, fraud, or dishonesty in connection with the employer's business or property.
    (b) Taking or giving of bribes or an illegal gratification whatsoever in connection with the employer's
    business or his own interests.
    (c) Willful insubordination or disobedience, whether alone or in conjunction with another or others, or of
    any lawful or reasonable order of a superior. The order of the superior should normally be in writing.
    (d) Habitual late attendance and habitual absence without leave or without sufficient cause.
    (e) Drunkenness, fighting or riotous, disorderly or indecent behaviors while on duty at the place of work.
    (f) Habitual neglect of work.
    (g) Habitual indiscipline.
    (h) Smoking underground within the area in places where it is prohibited.
    (i) Causing willful damage to work in progress or to property of the employer.
    (j) Sleeping on duty.
    (k) Malingering or showing down work.
    (l) Acceptance of gifts from subordinate employees.
    (m) Conviction in any Court of Law for any criminal offence involving moral turpitude.
    (n) Continuous absence without permission and without satisfactory cause
    for more than ten days.
    (o) Giving false information regarding one's name, age, father's name,
    qualification or previous service at the time of the employment.
    (p) Leaving work without permission or sufficient reason.
    (q) Any breach of the Mines Act, 1952, or any other Act or any rules,
    regulations or bye-laws there under, or of any Standing Orders.
    (r) Threatening, abusing or assaulting any superior or co-worker.
    (s) Habitual money-lending.
    (t) Preaching of or inciting to violence.
    (u) Abetment of or attempt at abetment of any of the above acts of
    (v) Going on illegal strike either singly or with other workers with out giving 14 day's previous notice.
    (w) Disclosing to any unauthorized person of any confidential information in regard to the working or
    process of the establishment which may come into the possession of the workman in the course of his work.
    (x) Refusal to accepted any charge-sheet or order or notice communicated in writing.
    (y) Failure or refusal to wear or use any protective equipment given by the employers

Motifs prohibés: grossesse ; congé de matérnité; affiliation et activités syndicales
  • The IDA (Fifth Schedule) on Unfair Labour Practices - these include prohibition of dismissal based on: trade union activity or membership and taking part in a strike which is not deemed to be illegal according to the IDA.
    Further, the Fifth Schedule of the IDA states that the Unfair Labour Practice shall be the following:
    "5. To discharge or dismiss workmen:
    (a) by way of victimisation;
    (b) not in good faith, but in the colourable exercise of the employer's rights;
    (c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
    (d) for patently false reasons;
    (e) on untrue or trumped up allegations of absence without leave;
    (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
    (g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment."

    Sec. 12 of the Maternity Benefit Act: Dismissal during absence or pregnancy

    Art. 16.2 of the Constitution of India on Equality of opportunity in matters of public employment, states that: "No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State". NOTE: This applies only in relation to public employment.

Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité
  • Schedule Five of the IDA
    Art. 12 of the Maternity Benefit Act