Theme: Employment

Can my employer ask me to not work with a rival firm if I quit the job?

No, employers cannot deny you the freedom and right to move to any firm if you decide to quit. Such restrictive terms in the contract are very problematic for employees and Indian courts have said that the protection of the rights of an employee seeking employment is more important than protecting the interests of the employer. If such a term is there in your contract, then you should talk to your employer. It is typically referred to as a non-compete clause. If your employer does not want to negotiate or remove such a term in your contract, then your only remedy is to go to court.

Why is it better to have a written employment contract, as compared with an oral one?

Contracts may be in written or oral form but in a scenario where there is no documentation of the offer and acceptance of the job, it may be more difficult to discover whether your employer and you have agreed and promised to honour the words spoken. This is why it is better to have an employment contract that is written and signed by your employer and you. It is also a useful proof for any proof of employment or filing of taxes.

Can doctors advertise their services?

No, doctors cannot advertise their services. Direct or indirect solicitation of patients by doctors is considered unethical. Doctors should not indulge in any form of advertisement that leads to self-promotion. For the same reason, they cannot put their own picture or self-promotional material on the letter head or the sign board of the clinical establishment.(( Section 6.1.1 and 6.1.2, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002.))

What are the qualifications of a registered medical practitioner?

Doctors can be designated as registered medical practitioners if:

  • They hold recognized medical qualifications(( Section 2(h), Indian Medical Council Act, 1956.))
  • They have completed an undergraduate medical course in a college or university recognized by the State government and registered with the Indian Medical Council.(( First Schedule, Indian Medical Council Act, 1956.)) A list of recognized colleges and universities can be found here.
  • They are enrolled with the State Medical Register(( Section 15, Indian Medical Council Act, 1956.))
  •  or the Indian Medical Register(( Section 21, Indian Medical Council Act, 1956.)) and received a registration number

If the medical degree has been obtained from a foreign university, an Indian citizen possessing primary medical qualifications awarded by a foreign medical institution must clear a screening test(( Rule 3, Screening Test Regulations, 2002.)), in order to be registered with either the Medical Council of India or State Medical Council.(( Second Schedule, Indian Medical Council Act, 1956.)) You can find a list of such foreign universities here.

Read and Understand the Employment Contract

To ensure that your rights as an employee in the private sector are protected, you must carefully read and understand the terms of your employment contract. It will not only mention the basic terms like salary and your job description but also provide further details of the rights and duties of both the employer and employees. Therefore you must always insist on getting a written contract and read it carefully before signing it as it will be hard to change any of the terms after it has been signed.

Whom does the law apply to?

The Code applies to all employees and employers in establishments, i.e., workplaces carrying on any industry, trade, business, manufacture or occupation, including Government offices(( Section 2(m), Code on Wages, 2019.)). However, the provisions on payment of wages and bonus do not apply to Government establishments unless the concerned Government makes them applicable through a notification.

Employee(( Section 2(k), Code on Wages, 2019.))

An employee is anyone who an establishment employs and pays wages to do work for hire or reward (this includes Government employees). It does not matter whether the terms of employment are clearly stated (like in a contract) or just implied.

The nature of the work could be:

  • Skilled
  • Semi-skilled or unskilled
  • Manual
  • Operational
  • Supervisory
  • Managerial
  • Administrative
  • Technical
  • Clerical

The following people are not considered employees:

  • Members of the Indian Armed Forces
  • Apprentice engaged under the Apprentices Act, 1961
  • People hired on a retainership basis

Employer(( Section 2(l), Code on Wages, 2019.))

An employer is someone who employs at least one employee in their establishment. It does not matter whether they employ the person directly or through anyone else, or employ someone on behalf of another person.

 

Type of establishment/work Employer
State or Central Government Department Authority specified by the head of the department. If not specified, it is the concerned chief executive of the department
Factory Occupier or manager of the factory
Any other establishment Person or authority having ultimate control over the establishment, such as a manager or managing director
Contract labour Contractor

 

A legal representative of a deceased employer is also an employer.

Who is an Advocate?

An Advocate is a person who argues  for the cause of another person in front of any other judicial authority. This could be a civil matter such as a contractual dispute between two individuals, or a criminal matter where the State punishes those who commit crimes with imprisonment etc. The majority of India’s  legal professionals represent clients in courts and other judicial bodies.

Qualifications needed to be an advocate(( Section 24(1), Advocates Act, 1961))

An advocate is simply  someone who is enrolled in any roll under the Advocates Act.(( Section 2(1)(a), Advocates Act, 1961))

A roll is a list prepared and maintained by the State Bar Councils, which contains the names of all advocates registered under the specific Council. The respective State Bar Councils have the duty to prepare and maintain rolls, and admit advocates to be listed on the roll.(( Section 6(1)(a); 6(1)(b), Advocates Act, 1961)) To qualify, the person applying to be an advocate should:

  • Be a citizen of India. However, foreign nationals can also be advocates if they come from countries where Indian citizens can practice law.(( Section 24(1)(a), Advocates Act, 1961))
  • Be at least 21 years of age.(( Section 24(1)(b), Advocates Act, 1961))

Degree in Law

The person applying should have a degree in Law:

  • Before 12th March 1967, from any University in India (Includes Pre-Independent India before 15th August 1947).(( Section 24(1)(c)(i); Section 24(c)(ii), Advocates Act, 1961))
  • After 12th March 1967, from any University in India recognized by the Bar Council of India, after undergoing a three-year course in law.(( Section 24(1)(c)(iii), Advocates Act, 1961))
  • After undergoing a course of study in law (at least two academic years) from the academic year 1967-68 or any earlier academic year from any University in India recognised by the Bar Council of India.(( Section 24(1)(c)(iiia), Advocates Act, 1961))
  • From any University outside India whose degree is recognized by the Bar Council of India.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • As a Barrister who has been a member of the Bar before 31st December, 1976.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • After passing the examinations specified by the High Courts of Bombay or Calcutta for enrolling as an Advocate in that High Court.(( Section 24(1)(c)(iv), Advocates Act, 1961))
  • Any other foreign qualification recognized by the Bar Council of India.(( Section 24(1)(c)(iv), Advocates Act, 1961)) See here for the list of recognized foreign universities.

Other conditions

For the purpose of enrolment, the applicant has to pay the required stamp duty to the State Bar Council. The applicant also has to pay an enrolment fee of Rs. 150 to the Bar Council of India, and Rs. 600 to the respective State Bar Council.(( Section 24(1)(f), Advocates Act, 1961; Rule 15(1), Part IX, Bar Council of India Rules, 1975))

Moreover, persons wanting to enrol as advocates may also need to fulfil any other conditions put forward by their respective State Bar Councils.(( Section 24(1(e), Advocates Act, 1961)) For example, the Bar Council of Delhi requires advocates to make a declaration that they are not engaged in any other trade, business, or profession. In case they are involved in something, they have to disclose the full information about it at the time of enrollment.(( Rule 104, The Rules of the Bar Council of Delhi, 1963))