Is dual employment allowed in India?
Do we have any legal restriction in India over dual employment? And the answer is ‘Yes’ there are restrictions on dual employment as per Section 60 of Factories Act, 1948 and we need to see who are all covered under this section and anyone who is guilty will be punished as per section 97 of the Factories Act, 1948 and if this offence is clubbed with any other provision then that will attract additional punishment/penalty. And the employees to whom Factories Act is not applicable may fall under the Shops and Establishments Act of the State where an employee is working.
Section 60 of the Factories Act, 1948 makes it clear about the restriction on double employment and definitions covered under Section 2 clarifies to whom the restriction is applicable under that act.
Section 60 – Restriction on double employment.—No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory, save in such circumstances as may be prescribed.
Now it comes to the applicability of this section, the above section prohibits dual employment in a factory only and we need to consider and see who are all covered under the definition of factory as per Section 2(m) of the Factories Act, 1948.
Section 2(m) – “factory” means any premises including the precincts thereof—
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,—
but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a mobile mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place.
The above definition of ‘Factory’ further refers to ‘Manufacturing Process’ which is defined in Section 2(k) of the Factories Act, 1948 as mentioned below:
Section 2(k) – “manufacturing process” means any process for—
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage;
As defined above Section 60 of the Factories Act, 1948 will not be applicable to IT or ITES companies/establishments because none of the manufacturing process as mentioned in Section 2(k) of the Factories Act, 1948 takes place in an IT or ITES company but are subject to the provisions entered and agreed by the parties under ‘Terms of Employment/Service’ which will be dealt as per Indian Contracts Act, 1872.