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Moonlighting: Dual Employment In Indian Law

You might for once think of getting employed at two different places in order to make more money. This seems like a genius idea; the exhaustion might be a little more than you usually bear but the satisfaction of getting more monetary benefits encompasses it all. This is exactly what the employees of Wipro thought, but this was not taken well by the IT company which resulted in, them losing their precious jobs. What these employees did, is called as 'MOONLIGHTING'. Let us understand this term, the need for moonlighting and the laws in the India regarding this dual employment, in this article.

Meaning of 'moonlighting':

Moonlight has been taken from the word 'Moonlighter' which means one who takes up a second work during the night and works by the moonlight. This was used in 1882 when an organized band that carried out agrarian outrages in Ireland used to commit crimes like murders and thefts at night. Moonlighter in American English meant 'one who goes serenading during the moonlight nights.'

Why moonlighting occurs?

Moonlighting has been described as unethical and a threat to the productivity and privacy policies of the companies, however if we see this phenomenon from the perspective of such a person who is engaged in dual employment, we will better understand the reasons behind it.
  1. Plan B / additional income sources
    As any prudent financial veteran would suggest you, having a Plan B or an additional source of employment is always a good step towards creating financial stability and a secure future. The global economy has been the worst since the occurrence of World war 2, people have lost jobs and have been pushed to the edge of poverty.

    In September 2022, India's unemployment rate, according to a private organization called the Centre for Monitoring Indian Economy, will be 6.50%. In urban India, it is 7.70%, but in rural India, it is 6.00%. In such circumstances, it is but natural for people to have backup plans.(1)
     
  2. Layoffs
    Layoffs basically means that the employees of a company are discharged for a temporary or permanent period. Massive layoffs are but a common scenario in the present-day economy. Reportedly, more than 15 thousand employees have been laid off this year, which includes the names of some unicorn start-ups like BYJU, meesho etc. These occurrences create an economically and mentally vulnerable and desperate situations for the people. Hence, employees prefer to have a second job that they can rely upon in case any layoffs happen.
     
  3. Change of career
    People who want to change their career path occasionally take on a second job to become accustomed to it. If you don't have a formal background in your target industry, people moonlight for a side job that gives them the experience they need to later land lucrative employment in it. People who want to change their career path occasionally take on a second job to become accustomed to it.

    You can keep working at your current employment while looking for side jobs or freelance possibilities in whatever industry you want. If you don't already have a formal foundation in your field, many moonlight as a side job to provide them the experience they need to later get lucrative employment in their field.
     
  4. Passion/ Creativity
    Sometimes the primary job becomes too monotonous and mundane for the employee. This not only affects his productivity but also creates a mental strain on the employee. To avoid this and take a break from the everyday humdrum tasks, employees take up jobs that interests them.

Why is moonlighting a problem?
The IT sector puts forward its split opinions when it comes to moonlighting. There are some tech companies which calls moonlighting plainly cheating and a breach of contract between the employee and the employer. They contend it to be a threat to their privacy and confidentiality.

Others also avow it to be harmful for the productivity of the employee which in turn affects the productivity of a company. In a July poll of 400 employees in the IT & ITES industry, Kotak Institutional Equities, it was discovered that "65% knew of people seeking part-time jobs or moonlighting while working from home."

This has been said to be promulgated with the COVID times where work from home was prevalent across the board and people were struggling to meet the ends meet with all that calamitous situation that was going on.

However, Companies like Swiggy has officially announced its 'moonlighting policy' that allowed its employees to work at more than one place under certain conditions. The employees can work outside their official hours or during the weekends to avoid clashing with the productivity or have a conflict with the business interest of Swiggy.

Laws for moonlighting in India
In India, it's legal to hold multiple jobs without breaching the law. However, a person with a similar set of jobs may raise questions about a breach of confidence because many employers place such restrictions in their employment agreements in addition to rules barring holding down numerous jobs. If an employee's contract stipulates non-compete and exclusive employment, as is the case with the majority of traditional employment contracts, moonlighting might be regarded as cheating.

If the employment contracts do not contain this clause or offer exceptions, it is not considered cheating. The concept of 'dual employment' is not dealt directly by the Indian law. However, there are certain statues that govern them.
  1. A worker is not permitted to work in two workplaces at once, according to Section 60 of the Factories Act of 1948. However, an IT specialist or any employee holding an administrative or supervisory function is not included in the Factories Act's definition of a worker.
     
  2. According to the Industrial Job (Standing Orders) Central Rules, 1946, a worker must not work against the industrial establishment's interests and must not accept any supplementary employment that could jeopardise the employer's interests.
     
  3. The Shops and Establishments Act governs employees who work in, among other places, retail establishments, dining establishments, theatres, and other public amusement or entertainment facilities, as well as information technology and information technology-enabled services. Each state has a unique Shops and Establishments Act. For instance, the Delhi Shops and Establishments Act of 1954 forbids multiple work.
     
  4. All country citizens have the right to practise any profession and to engage in any occupation, trade, or business, according to Article 19(1)(g) of the constitution. Moonlighting can be brought under the ambit this article. However, this article is also subjected to reasonable restrictions.

Case Laws:
  1. In a case involving the transfer of an employee from a factory to the head office, Manager, Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others (AIR 1970 SC 823), the Supreme Court made the following observation: "The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with other master unless the contract otherwise provides or the master consents.(2)
     
  2. Citing the aforementioned Supreme Court ruling, the Madras High Court ruled in the case of Government of Tamil Nadu vs. Tamil Nadu Racecourse General Employees Union (1993 ILLJ 977 Mad) that "there may not be any prohibition to have dual employers if the contract otherwise provides, or the master consents."(3)
     
  3. Article 21 of the constitution includes right to life and personal liberty. Right to life has been read broadly with right to livelihood in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni (1983) 1 SCC 124.- The Court concluded that "the right to life" guaranteed by Article 21 encompasses "the right to livelihood".(4)
Conclusion
Moonlighting is a sensitive and complicated situation for the companies to deal with. Having no concrete law in this regard makes it even more prone to be bend according to one's own interpretation. From the viewpoint of general public, this seems justified and fair. But the companies or organisation doesn't run on the delusions or philosophies of right and wrong. It runs on laws, policies and contracts. The absence of which can lead to a haphazard situation of mismanagement and chaos.

This can even put the economy in a danger. Thus, the court or the Government can come up with an effective law to deal with 'dual employment' or 'moonlighting', to make it easier to regulate and govern while keeping in mind the needs of the people and thus protecting their fundamental rights as well.

References:
  1. https://www.livemint.com/news/india/why-moonlighting-why-do-people-take-up-a-second-job-anyway-11661918379778.html
  2. Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others (AIR 1970 SC 823)
  3. Government of Tamil Nadu vs. Tamil Nadu Racecourse General Employees Union (1993 ILLJ 977 Mad)
  4. Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni (1983) 1 SCC 124

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