勞動契約與試用期 — India (印度)

Applicable law: Indian Contract Act 1872, Industrial Disputes Act 1947,
Industrial Employment (Standing Orders) Act 1946, Industrial Relations Code 2020
(passed but not yet notified as of April 2026), state-level Shops & Establishments Acts,
Information Technology Act 2000.
Currency: Indian Rupee (INR / Rs.).

1. 主要法源

Critical note: India's four new Labor Codes (passed September 2020) — including the IR Code and OSH Code — have not yet been notified (i.e., brought into force) as of April 2026. Until notification, the existing acts (IDA 1947, IESO Act 1946, Contract Labour Act 1970, etc.) remain operative. This document covers both the current regime and the incoming Code provisions.

🔴 — The notification date for the new Codes remains unclear. Some states have pre-published draft rules, but central notification has not occurred.

2. 核心規定

2.1 契約類型 (Contract Types)

India does not have a single unified employment contract statute. Contract types arise from multiple overlapping laws and are further shaped by state-level legislation.

Permanent / Regular Employment

🟢 — Under the Model Standing Orders (IESO Central Rules, Schedule I):

• A permanent workman is one appointed for an unlimited period who has satisfactorily completed a probation period (typically 3 months per Model Standing Orders, Item 2).
• Entitled to full statutory protections: retrenchment notice, compensation, industrial dispute resolution.

Probationer

🟢 — Model Standing Orders define a probationer as a worker provisionally employed to fill a permanent vacancy who has not yet completed the prescribed probation period.

Fixed-term Employment

Current regime (IDA 1947):
🟠 — The IDA 1947 does not explicitly define or regulate fixed-term employment. Fixed-term contracts exist based on general contract principles (Indian Contract Act), but workers engaged on fixed-term basis may still be treated as "workmen" under IDA for retrenchment protections.

Under IR Code 2020 (when notified):
🟢 — The IR Code explicitly introduces fixed-term employment as a recognized category:

• Fixed-term employees are entitled to the same wages and benefits as permanent employees performing equivalent work.
• Eligible for gratuity upon completing 1 year (reduced from the standard 5-year threshold for permanent employees).
• No statutory cap on number of renewals.
• Must be in writing.

🟡 — Some states (e.g., Uttar Pradesh, Madhya Pradesh) have already incorporated fixed-term employment provisions into their state-level rules even before central notification.

Contract Labour (Indirect Employment)

Current regime — Contract Labour (Regulation and Abolition) Act, 1970:
🟢 — Key provisions:

• Applies to establishments employing 20 or more contract labourers.
• Contractor must be licensed; principal employer must be registered.
• Government may abolish contract labour in specific processes or establishments.
• Contract labour prohibited for work that is perennial, necessary for the establishment's core business, or performed by regular workers in the same establishment.

Under OSH Code 2020 (when notified):
🟢 — Key changes:

• Threshold raised to 50 or more workers.
• Definition refined to exclude workers who are regularly employed by the contractor with permanent employment terms, periodic pay increments, and social security coverage.
• No restriction on the type of work for which fixed-term workers may be hired (broader flexibility).

Temporary / Casual / Badli Workers

🟢 — Model Standing Orders (IESO Rules, Schedule I) classify:

• Temporary workman: engaged for work of a temporary nature or in a permanent vacancy on a temporary basis.
• Casual workman: employed on a casual basis.
• Badli: substitutes for permanent or probationary workers who are temporarily absent.

2.2 書面要求與必要條款 (Written Form & Mandatory Clauses)

General Rule — No Universal Written Requirement

🟢 — The Indian Contract Act, 1872 does not mandate written form for employment contracts. A valid contract requires:

1. Offer and acceptance (Section 2)
2. Lawful consideration (Section 23)
3. Free consent (Sections 13–14)
4. Capacity to contract (Section 11)

Oral employment agreements are legally valid, though difficult to enforce in disputes.

Standing Orders — Written Conditions of Employment

🟢 — The IESO Act, 1946 requires establishments with 100 or more workers (threshold varies by state; some states apply to 50+) to formulate written Standing Orders covering:

Under IR Code 2020: Threshold changes to 300 or more workers for mandatory Standing Orders. Establishments below 300 will be governed by Model Standing Orders by default.

State Shops & Establishments Acts

🟢 — Most state S&E Acts require employers to issue an appointment letter or employment letter containing basic terms:

• Designation and duties
• Date of commencement
• Wage and payment schedule
• Working hours
• Leave entitlements
• Notice period for termination

🟠 — In the IT/services sector and for managerial employees, written employment contracts are standard practice. Key clauses typically include:

• Compensation and benefits
• Probation period and confirmation terms
• Notice period (typically 1–3 months)
• Non-compete and confidentiality (enforceability varies — see Section 2.6)
• Intellectual property assignment
• Termination grounds

2.3 試用期長度與規則 (Probation Period)

Model Standing Orders (IESO Central Rules)

🟢 — Schedule I, Item 2 of the IESO Central Rules, 1946:

• A probationer who has completed 3 months' continuous service in a permanent post is classified as a permanent workman.
• The prescribed period may be extended if the Standing Orders so provide.

🟠 — Common probation period lengths by sector:

No Unified Statutory Cap

🟠 — Unlike China, India has no central statute prescribing maximum probation lengths. The period is governed by:

1. Applicable Standing Orders (if the establishment is covered)
2. State S&E Act provisions (some states limit or regulate probation)
3. Individual employment contract terms

🟡 — Courts have generally upheld probation periods of 3–6 months as reasonable. Extended probation (beyond 1 year) may be scrutinized for reasonableness.

Extension of Probation

🟠 — Extensions are permissible if:

• The original contract or Standing Orders provide for it
• The extension is communicated before the original probation expires
• The total probation period remains reasonable

🟡 — Courts have held that employers cannot extend probation indefinitely. Failure to confirm or terminate upon probation expiry may result in deemed confirmation (automatic permanent status).

Key principle: If an employer does not expressly extend probation or terminate before it expires, the employee may be deemed confirmed as a permanent employee.

2.4 試用期終止條件 (Probation Termination Rules)

Model Standing Orders — Termination of Probationers

🟢 — Under the Model Standing Orders (IESO Central Rules):

• Probationers may be terminated without notice if their services are found unsatisfactory during the probation period.
• No pay in lieu of notice is required for probationers.
• The termination must be a bona fide assessment of fitness, not a punitive measure.

🟡 — Key judicial principles:

State Shops & Establishments Acts

🟢 — Some state S&E Acts impose notice requirements even for probation termination:

🟠 — Many employers include a short notice period (7–15 days) in the probation section of the employment contract for clarity, even where not strictly required by statute.

Under IR Code 2020 (when notified)

🟢 — The IR Code requires standing orders to cover termination of probationers. The Model Standing Orders under the Code formalize that:

• Probation must be defined in writing
• Termination must follow fair procedure
• Indefinite extensions are prevented

2.5 定期契約續約上限 (Fixed-term Renewal Cap)

Current regime: No statutory cap on fixed-term renewals.

🟠 — However, courts have scrutinized long-running chains of fixed-term contracts:

• If the work is perennial in nature and a fixed-term worker is continuously re-engaged, courts may deem the worker a permanent employee entitled to IDA protections.
• The principle is similar to Taiwan and China: substance over form.

Under IR Code 2020:
🟢 — No explicit cap on the number of renewals for fixed-term employment.

• However, fixed-term employees must receive benefits equivalent to permanent employees.
• Gratuity eligibility after 1 year (instead of 5 years) removes a key disadvantage of fixed-term status.
• 🔴 — Whether courts will develop an implicit renewal cap through case law after the Code is notified remains to be seen.

2.6 競業禁止 (Non-compete — Optional)

Legal Framework

🟢 — Section 27 of the Indian Contract Act, 1872:

Every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void.

This is one of the strongest anti-restraint-of-trade provisions globally.

Exceptions

🟢 — Section 27 exception: restraints in connection with the sale of goodwill of a business.

🟡 — During employment: Non-compete restrictions during the tenure of employment are generally enforceable as they are considered part of the employment terms rather than a restraint of trade.

🟡 — Post-employment: Post-employment non-compete clauses are generally unenforceable in India. Key judicial positions:

🟠 — Despite unenforceability, many employers include post-employment non-compete clauses as a deterrent. Courts have occasionally upheld narrowly tailored clauses in specific cases, but the dominant position remains that they are void under Section 27.

Confidentiality and IP Agreements

🟠 — Non-disclosure agreements (NDAs) and confidentiality clauses are enforceable post-employment, as they protect trade secrets rather than restraining trade. Employers should rely on confidentiality agreements rather than non-compete clauses for post-employment protection.

2.7 電子契約效力 (E-contract Validity — Optional)

🟢 — Information Technology Act, 2000:

Employment contract applicability:
🟠 — Electronic employment contracts are increasingly common, particularly in the IT sector. The IT Act supports their validity, provided:

• The e-signature meets the requirements of a "secure electronic signature" (Section 15)
• The electronic record is accessible for subsequent reference (Section 4)

Exclusions (IT Act, First Schedule):
🟢 — The following are excluded from electronic form:

• Negotiable instruments (except cheques)
• Power of attorney
• Trust deeds
• Wills
• Contracts for the sale of immovable property

Employment contracts are not in the exclusion list, so electronic execution is valid.

🟠 — In practice, major Indian IT companies (TCS, Infosys, Wipro) and MNCs routinely use electronic offer letters and employment agreements. Smaller firms still rely on physical letters.

3. 立法理由與實務見解

India's Fragmented Labor Law Landscape

India's employment law is characterized by:

• Central laws (IDA 1947, IESO Act 1946, Contract Labour Act 1970) providing the framework
• State laws (Shops & Establishments Acts) filling gaps for commercial establishments
• Concurrent list jurisdiction: both central and state governments can legislate on labour matters
• Result: significant variation across states in thresholds, notice periods, and procedural requirements

The 2020 Labor Codes — Reform Intent

The four Labor Codes (Wages, Social Security, OSH, Industrial Relations) consolidate 29 existing central laws into 4 codes. Key objectives:

• Simplify compliance for employers
• Extend protections to the unorganized sector
• Formalize fixed-term employment
• Raise thresholds for government approvals (retrenchment: 100 to 300 workers)
• Modernize standing orders regime

🔴 — As of April 2026, none of the codes have been notified. Industry speculation is that implementation may be phased, but no official timeline has been confirmed.

Probation — Judicial Evolution

Indian courts have developed a nuanced approach to probation:

1. Simpliciter vs. stigmatic: A clean termination (simpliciter) requires no enquiry; one that implies wrongdoing requires full disciplinary proceedings.
2. Deemed confirmation: Courts protect workers from perpetual probation by implying confirmation when employers fail to act.
3. Reasonable period: While no statute caps probation, courts may intervene if the period is deemed unconscionably long.

Fixed-term Employment — Filling the Gap

Before the IR Code 2020, fixed-term employment lacked a clear statutory framework. Workers on repeated fixed-term contracts could invoke IDA protections by arguing the work was permanent in nature. The IR Code's recognition of fixed-term employment provides clarity but also introduces concerns about potential misuse to avoid permanent hiring.

4. 雇主合規重點

• Issue appointment letters for all employees, even where not strictly required by statute (best practice and increasingly expected by courts)
• Specify probation period clearly in the appointment letter: length, conditions for confirmation, extension provisions
• Act before probation expires: either confirm, extend (with written notice), or terminate — failure to act may result in deemed confirmation
• Probation termination: ensure termination is simpliciter (not stigmatic) to avoid the requirement for a full enquiry
• Standing Orders: if establishment has 100+ workers (or lower state threshold), certify Standing Orders with the appropriate authority
• Fixed-term contracts: ensure equal benefits with permanent workers; include gratuity calculation for engagements of 1+ year
• Contract labour: verify registration (principal employer) and licensing (contractor) under the Contract Labour Act 1970 or applicable state rules
• Contract vs. permanent: do not use contract labour for core/perennial activities where the government has issued abolition notifications
• State S&E Act compliance: check applicable state act for notice period requirements, even during probation
• Non-compete clauses: avoid relying on post-employment non-compete; use confidentiality / NDA agreements instead for post-employment protection
• Electronic contracts: valid under IT Act 2000; ensure secure electronic signature compliance
• Monitor Labor Code notification: track central and state notifications for the IR Code 2020 and OSH Code 2020 — compliance timelines will be tight once notified
• Multi-state operations: map applicable state S&E Act requirements for each operating location

5. 與其他轄區的關聯

6. 風險警示

1. Deemed confirmation trap: Failing to confirm, extend, or terminate an employee before probation expiry can result in automatic permanent status with full termination protections.
2. Stigmatic termination without enquiry: If a probation termination implies misconduct (e.g., citing specific failures), it may be challenged as a punitive measure requiring a disciplinary hearing.
3. Contract labour misuse: Using contract labour for core/perennial work where abolition notifications exist may result in liability for the principal employer; workers may be deemed direct employees.
4. Fixed-term contracts for permanent work: Repeated renewals for permanent work may lead to courts re-characterizing them as permanent employment with back-dated benefits.
5. Post-employment non-compete enforcement: Relying on non-compete clauses provides false security; these are void under Section 27 of the Indian Contract Act.
6. State-level variation: Notice periods, thresholds, and procedural requirements vary significantly across states. Multi-state employers must maintain state-specific compliance matrices.
7. Labor Code transition risk: When the 2020 Codes are eventually notified, employers will need to comply with new thresholds, standing order requirements, and fixed-term employment frameworks. Advance preparation is recommended but compliance cannot be premature (current laws remain operative until notification).
8. Retrenchment compensation oversight: Under IDA Section 25-F, workers with 240+ days continuous service are entitled to retrenchment compensation (15 days' wages per year of service). This applies even if the employee was technically still on "probation" if the probation exceeded this period.
9. IT sector specific: Software professionals earning above a threshold (currently INR 21,000/month under ESIC; varies) may be classified as "employees" under social security laws but excluded from IDA "workman" protections, creating a dual-status complexity.

7. 資料來源清單

1. Indian Contract Act, 1872 — https://www.indiacode.nic.in/
2. Industrial Employment (Standing Orders) Act, 1946 & Central Rules — https://labour.gov.in/sites/default/files/industrialemploymentstandingorders1centralrules1946.pdf
3. Industrial Employment (Standing Orders) Act, 1946 (Full text) — https://www.indiacode.nic.in/bitstream/123456789/20572/1/the_industrial_employment.pdf
4. Industrial Relations Code, 2020 (Gazette) — https://labour.gov.in/sites/default/files/ir_gazette_of_india.pdf
5. PRS India — IR Code 2020 Bill Track
6. Contract Labour (Regulation and Abolition) Act, 1970 — https://www.indiacode.nic.in/bitstream/123456789/1467/1/A1970-37.pdf
7. Mondaq — The Industrial Relations Code, 2020
8. Fisher Phillips — India's New Labor Codes: 9 Steps for Multinational Employers
9. Singhania & Partners — Probation in Employment Contract in India
10. India Briefing — Guide to Terminating Employment in India
11. Lexology — Contract Labour Under the New Regime
12. RemotePeople — Probation Period in India
13. National Law Review — India's New Labor Codes: Comparison of Employee v. Worker

8. 待確認事項

• 🔴 — 2020 Labor Codes notification date: As of April 2026, none of the four codes have been centrally notified. The actual implementation timeline remains unknown.
• 🔴 — State-specific draft rules: Several states (UP, MP, Karnataka, Rajasthan) have pre-published draft rules under the new Codes, but their final status and alignment with the eventual central notification need verification.
• 🔴 — Banking/financial sector probation norms: Some banks and financial institutions prescribe probation periods of 1–2 years under internal service rules. The specific provisions of individual bank service rules need case-by-case verification.
• 🔴 — ESIC threshold for IT professionals: The current threshold for ESIC coverage and its interaction with "workman" vs. "employee" classification under the new Codes may change upon notification. Current threshold reportedly at INR 21,000/month but this needs confirmation against the latest gazette notification.
• 🔴 — Whether courts will develop an implied renewal cap for fixed-term contracts under the IR Code (similar to China's two-renewal rule) remains speculative until the Code is operational and case law develops.
• 🔴 — The exact scope of "core activities" prohibited for contract labour varies by state and industry-specific government abolition notifications. A comprehensive state-by-state mapping is needed for multi-state employers.