The Law Governing Employment Practices in India and Positioning the Leave/Working System for the Employees

  • Shubhang Gomasta and Sushmita Das
  • Show Author Details
  • Shubhang Gomasta

    Advocate at High Court of Bilaspur, India

  • Sushmita Das

    Assistant Professor at NRI Group of Institutions Bhopal, India

Abstract

The Employees may be males or females but in India mostly in workplaces an employee can take a leave which is known as casual leave i.e. CL, Earned Leave or Privilege Leave, Sick Leave or Medical Leave, Maternity Leave, Half Pay Leave etc. Under the Factories Act, a single earned leave is granted for every 20 working days, i.e. 18 leaves per year and so on. The researcher has identified various pros and cons in the leave system for the employees and also identified as well as compared with other jurisdiction around the globe. As of now in India, Menstrual leave is not recognized and as a woman she is compelled to work even on that day of her menstrual cycle goes on. A woman should be given that privilege so that she can take two days leave during her cycle. The woman is not only a woman who work in companies, industries etc. but also the maid servants who work in others home since they are not regulated under any Employment Acts or legislations but there are huge number of such women in India. The researcher has identified similar problem in the paternity leave in India as when we talk about equality in terms of rights and duties in society, it is always not in equilibrium. In case of paternity leave, a father doesn’t get leave in any sector except in central government. So, the researcher in this research paper has identified the problems and the solution to it with the help of stringent laws.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 752 - 756

DOI: http://doi.one/10.1732/IJLMH.26161

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

In India, employment laws and labour laws are also known as Industrial Laws. During the common law system, the history of Industrial laws can be traced back.  Mainly, the industrial laws were enacted not for the Indian Employees but for the British Employees.  The industrial laws are tripartite relationship between employer, employee and labour organizations. India follows the structure of federalism where the power of government is divided between the center and state and both the government has power to make legislation like Industrial Dispute Act, 1947, The Employees State insurance Act 1948 etc. since it is a subject of concurrent list in the Indian Constitution.

II. The menstruation benefits bill, 2017

As every year International Women’s day is celebrated for woman across the world but when it is time to give women a day of in the name of menstrual Leave then such bill is still pending to become an Act as India is known for its diversity where all religion stays together and fundamentally respects each other cultural and religious values. As women are considered Goddess in India from their childhood to adulthood, In India there is a festival which is known as “Navratri” which is celebrated twice a year during the month of March-April and in September-October in which Hindu’s worship goddess Durga and every girl child who doesn’t menstruate will be called at temples, home or in such families who perform such functions and group of girls either seven, nine, eleven which is not mandatory but it depends from one Indian family to the other how many girls they wish they can invite and offer them food, gifts, Prasad which is a religious offering (libation)  as they do not go through menstruation and those girls are considered as pure. Once a girl starts menstruating she is not called for such religious affairs and she is considered as adult in India which is the oldest custom and has the deepest connection with the term menstruation.

India has acquired energy in requesting better work laws in the nation to encourage a superior workplace for representatives, particularly females. Monthly cycle leave has been one of the essential requests for giving paid leave to ladies during period. Likewise, females request resting periods or breaks during monthly cycle and fitting assets to encourage a solid working environment for ladies. There is an upsurge in the media and common society associations in tending to the challenges related with monthly cycle just as missions and petitions for feminine leaves. India has acquired energy in requesting better work laws in the nation to encourage a superior workplace for representatives, particularly females. Monthly cycle leave has been one of the essential requests for giving paid leave to ladies during period. Likewise, females request resting periods or breaks during monthly cycle and fitting assets to encourage a solid working environment for ladies. There is an upsurge in the media and common society associations in tending to the challenges related with monthly cycle just as missions and petitions for feminine leaves.

The idea of feminine paid leaves started in World War II-period where individuals understood the need to address this issue. There are numerous nations that have permitted paid leaves for ladies during feminine cycle, for example, Taiwan, South Korea, Japan and Indonesia. Italy has proposed a covered feminine leave tab. Indeed, an all-young ladies school in Kerala has conceded feminine leave to the understudies since 1912. Corporates like Nike and Toyota have executed a feminine leave strategy in their organization and numerous Indian organizations are additionally thinking about the equivalent.

The University College of London led research which expressed that feminine agony can be “as terrible as having a coronary episode”. Various ladies react to the torment and disquiet in an unexpected way, contingent on their ability to bear such trouble. Notwithstanding, ladies are relied upon to perform with consistency, in spite of the natural complexities appended to them. Subsequently, allies accept that ladies reserve the privilege to benefit extra leaves for monthly cycle.

The introduction of the Menstruation Benefit Bill of 2017 is by Shri Ninong Ering who is a member of parliament.  As the bill number 249 of the year 2017 is “to provide certain facilities to female employees during menstruation at work place and other matters related to it in the 68th year of the republic. Since the bill is not yet passed but which may be called as the Menstruation Benefit Act, 2017, Mensuration is a cycle which comes every month, a vaginal bleeding that every woman has to face which is a blessing but many women feel pain during those days which basically last for a week, some woman it last for three to four days but maximum it last for seven days. The menstrual leave is necessary because it causes menstrual pain and every woman need at least a two days in the name of periods leave or menstrual leave. Most of the women can’t work during her menstrual cycle whether its home or their workplace.

III. Important sections of the bill

As the Bill Benefits the female workers who work in a workplace during menstruation and others. Ninong  Ering who is a MP (Member of Parliament ) Lok Sabha from Arunachal Pradesh  who forwarded the bill in 2017 which is known  as Menstruation Bill , 2017.

Some of the important Sections in the Bill are as follows:

Section 2:

This bill is applied to every establishment, factory, mine or plantation which can be Government and Non-Government,  Even in any shop or establishment wherein ten or more person are employed , Self-employed persons and those working in the unorganized sector having less than ten employees.

Section 4: Right to menstrual Leave

This is the main section which the article rotates about and the author is suggesting that Right to menstrual leave is not a fundamental right but it should be treated as one of the basic rights of every woman in any workplace in the company’s prospectus itself.  The section permits paid leave to every woman during menstruation.  This section will allow woman who is an employee in any establishment which is registered. This section is applied to not only to female workers but also to the school students who are above eight (class 8) will be given 4 day period leave from school during her periods.

If the student or woman wishes to opt for leave then she can but if she wants to waive the leave then she should have the overtime or extra paid leave which the author suggest to amend in this section.

Section 5

The bill also gives right to every woman working in an establishment to have a half an hour rest during her menstruation which should not allowed four days in a cycle of period means in a month after 28 days. The bill says that every establishment must have crèche facilities for female employees who have kids below the age of five years and the company should tell before in writing or digitally about the facilities before the employment for appointment given by the establishment.

Section 8: Recognition of Menstruation

This section provides for that the every woman has right to self-perception of her menstruation in order to avail the benefit under this bill.

Redressal Mechanism

If a woman face any kinds of glitch in the bill then she can approach the International Committee for Complaints which is constituted under the Sexual Harasment of Women at workplace ( Prevention, Prohibition and Redressal) Act, 2013 which will enable woman to seek any help under this grievance mechanism related to the Menstrual Benefit.

Section 10: Punishment

This section describes about the punishment for non-compliance of the bill as whoever denies menstrual leave to the woman, hinders a woman to take the leave for the period leave and denies rest period or recreation facility provided in the bill. The Bill provides such person is punishable for a term not less one month which may be extended to three month with fine, not less than ten thousand rupees which may extend to fifty thousand rupees.

IV. Significance of menstrual leave and goals of the bill

In today’s time, it’s no more a taboo in the society to talk about menstrual cycle even with a higher secondary level child or below teens (from 10 year to 15 years) in the society. The menstrual leave was introduced by many companies like zomato, various media companies etc. in which they give one day leave to their female workers of the company.  The process of menstruation is very natural created by god himself and even in many states they started giving leave in the name of menstrual leave and some states like the state of Bihar give leave as SCL- Special Casual Leave.

During this time of menstruation it is very difficult for a women  to work not only physically but also mentally as she has to suffer from various discomforts like fever, stomach pain, nausea, vomiting , fatigue and various kinds of pain suffered by a woman which differs from one person to another. These leaves should be recognized by the Government either in the Menstrual leave Act or in the Labour legislations itself. If a leave is provided to a woman in that case women will not only feel privileged about her identity being a woman as most of the woman hate themselves just for this reason why they are woman and have to suffer a lot being a such woman who bleeds every month.  A woman is also considered to work at home throughout her life without any retirement but at least she can get a day off for this. So the main goal of the bill is provide a menstrual leave to the female workers or the employees of any workplace irrespective of Government or private sector.

V. Conclusion and ways forward

Menstruation is a biological and natural process in which women are bless if they menstruate and if she is finding it difficult to work during those days then she should be given special leave in the name of Periods Leave or Menstruation Leave. There should be strict compliance made by the companies which should provide the leave and the company or the employer who is not allowing period leave for women should be punished and this is high time where the companies can show some empathy towards female employees. If some companies do not allow their employees a leave due to hectic schedule then they should be given less work in that period and also work from home cultures should be engaged without any cut in the salaries of the employees.

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