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Gayatri (Law Student)     20 April 2023

Temporary employee under probation entitled to wages and benefits as other permanent employee?

A temporary employee who is under probation of 2 weeks and will upon satisfactory completion of this probation period, entitled to any benefits or even wages as that of other regular employee?

Illustration: A gets hired by a company. The company makes him sign a temporary employment contract which outlines that A will work for the company for a duration of 2 weeks without compensation and after this duration he will be made an permanent employee.

Q1. Is it violative of any labor or service code?

Q2. Can this period of engagement be justified as probation when the probationer himself is not entitled to any employee benefits?

Q3. What statutory code must I refer to deal with this scenario?



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 6 Replies

Sudhir Kumar, Advocate (Advocate)     20 April 2023

you have not even shared whether employer is govt or private.

T. Kalaiselvan, Advocate (Advocate)     21 April 2023

In a big relief to lakhs temporary employee who have been hired by government departments and agencies across the country on contractual basis, the Supreme Court held that they are entitled to wages at par with permanent employees and principle of 'equal pay for equal work' must be followed.

  • SC said contractual employees are entitled to wages at par with permanent employee
  • Principle of ‘equal pay for equal work’ must be followed, SC said
  • Undoubtedly, the action pf paying lesser wage is oppressive, the bench said

A bench of Justices JS Khehar and SA Bobde said the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right vested in every employee whether engaged on regular or temporary basis.

“In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity,” the bench said.

1 Like

Dr J C Vashista (Advocate)     21 April 2023

There is "no" appointment as "temporary" of an employee.

Recheck appointment letter issued by employer..

Practically employees hired by goverment on contract i.e., through agencies, are comparatively very less paid, where the ratio of judgment qua "equal pay for equal work" is inapplicable.

1 Like

Ritesh Maity (Labour Law Advocate)     21 April 2023

First of all, a temporary employment contract for two weeks becomes void only on the ground if no consideration (wages) is paid. One of the criteria for a contract is consideration. 

A1. It is violation of labour laws in India since wage is required to be paid. However, since the employee has opted not to receive any wages during probation period (though such contract is void), management can take the plea that the employee has voluntarily waived off his right to salary. However, in spite of having such contract, if the employee demands wage for the period he has served (even during probation), management would be required to pay wage for such period.

A2. Whether management is able to justify the period of probation or not, an employee is entitled to wage for the service he provided. So even if management is able to justify this hypothetical situation, it won't help them anyways. 

A3. There is no law which prescribes engagement of a person without any consideration. 

 

1 Like

Gayatri (Law Student)     21 April 2023

Apologies for the confusion, the employer is a private company

 

Sudhir Kumar, Advocate (Advocate)     25 April 2023

you need to show emplyment contract to a lawyer.


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