Theme: Labour & Employment

Can I get leave if I had a miscarriage, abortion or a tubectomy operation?

If you have had a miscarriage or an abortion then upon showing proof of the same, you will be entitled to leave and payment at the rate of maternity benefit for 6 weeks from the date of the miscarriage or abortion. If you have had a tubectomy operation then you get leave with wages for two weeks from the date of your operation. If you have suffered from an illness due to a miscarriage, abortion or tubectomy operation, you will get an additional month of leave with wages.(( Section 9,9A and 10, The Maternity Benefit Act, 1961.))

How do I calculate the number of days I have worked for my employer ?

For the purpose of calculating the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared to be paid  holidays during the period of 12 months immediately preceding the date of her expected delivery shall be taken into account.(( Explanation, Section 5(3), The Maternity Benefit Act, 1961.))

In a case where the factory remained closed during the rainy season, those days were added to the days during which she worked for the purpose of calculation.(( F.M. Kolia and Ors. Vs. Manager, The Tiles and Pottery Works Ltd. and Ors. (1981) 22 GLR 528.)) Even in a case where the woman had worked for a few half days, they were counted as full days for the purpose of calculating the total number of days she had worked at the establishment.(( Ram Bahadur Thakur (P) Ltd. Vs. Chief Inspector of Plantations (1989) IILLJ 20 Ker.))

Can fathers get paternity leave in India?

Employees working in the public sector get certain paternity leave benefits. Male employees with less than 2 surviving children get a leave of 15 days to take care of their newborn/ adopted child.(( Section 551 (A), Central Civil Services (Leave) Rules.)) A man can avail this leave 15 days before delivery, or within 6 months from the date of delivery of the child. The payment during the leave will be equal to the pay last drawn immediately before proceeding on leave.

However, this concept does not exist for private-sector employees, unless specific companies allow for it. The proposed Paternity Benefit Bill, 2017 seeks to protect the paternity rights of working men, but it has not been passed yet.

What is the maternity benefit under the ESI Act(Employees State Insurance Act, 1948)?

The Employees State Insurance Act, 1948( ESI ) is a law meant to financially support workers when they go through medical distress. Under the ESI law, you are eligible to get periodical payments in terms of maternity benefit. However, you have to work for 70 days to be eligible for maternity benefit. The benefits under the ESI law are as follows:

  • You are entitled to paid maternity benefits for a period of up to 26 weeks. Out of this, the benefits of 8 weeks can be availed before delivery.(( Section 56(2), Employees’ State Insurance (Central) Amendment Rules, 2017.))
  • The maternity benefit under this law is a “Standard Benefit Rate”. It is the total amount of salary/wages received during a contribution period divided by the total number of days you have worked for or Rs. 25 whichever is higher.
  • The type and time period of the benefits you can avail, if you have undergone miscarriage, abortion or are sick owing to your pregnancy, is the same under this law as it is under the Maternity Benefit Act.
  • If a woman dies during delivery or in the period following her delivery then the same rules as under the Maternity Benefit Act apply.
  • Under this Act, you cannot be dismissed, discharged, or punished while you are receiving maternity benefit.(( Section 73, Employees State Insurance Act, 1948.))

You are also entitled to a confinement expense of Rs.5000, provided that the confinement occurs at a place where necessary medical facilities under the ESI Scheme are not available.(( Section 56A, Employees’ State Insurance (Central) Amendment Rules, 2017.))

Can a complaint be filed against an advocate in a consumer court?

A person who is dissatisfied with the services of a lawyer can file a complaint against the advocate in the State Bar Council. The National Consumer Dispute Redressal Commission held in a judgement that lawyers are service providers under the Consumer Protection Act, but this was stayed by the Supreme Court of India in 2009 and still remains pending in the court, so there is no remedy available against an advocate in a consumer court currently.(( Bar of Indian Lawyers Vs. D.K. Gandhi and anr, Special Leave to Appeal (Civil) Nos. 3052/2008))

Can doctors employed in government services run private clinics?

Doctors appointed by the Central Government under the Central Health Service (CHS) are not allowed to have a private practice of any kind whatsoever including any consultation and laboratory practice.(( Central Health Service Rules, 2014, Rule 13, https://main.mohfw.gov.in/sites/default/files/40341676761406801162.pdf. )) CHS was constituted to manage various medical posts under the Central Government, Union Territories and certain other organizations. Presently, it caters to the needs of various participating units like Directorate General of Health Services including the organizations under its control, Central Government Health Scheme, Govt. of NCT of Delhi, Ministry of Labour, Ministry of Finance, Department of Posts etc.(( Central Health Services, MINISTRY OF FAMILY HEALTH AND WELFARE, https://main.mohfw.gov.in/sites/default/files/6355649643BackgroundCHS_0_0_0.pdf.)) Officers under CHS are entitled to a Non-Practicing Allowance (NPA) of 20% of Basic Pay subject to the condition that the Basic Pay plus NPA does not exceed ₹ 2,37,500.(( Report of the 7th Pay Commission, GOVERNMENT OF INDIA, Pg: 348 https://www.finmin.nic.in/sites/default/files/7cpc_report_eng.pdf?download=1))

As Health comes under the State list(( Sch. 7 List II Entry 6, Constitution of India, 1950.)), information pertaining to the doctors in private practice across the country is not centrally maintained. Each state has different rules of medical practice.(( Non-Practicing Allowance Of Doctors In Government Hospitals, GCONNECT, GOVT. EMPLOYEES ONLINE PORTAL, https://www.gconnect.in/orders-in-brief/pay-allowances/allowance-orders-in-brief/non-practicing-allowance-doctors-government.html.))

Can an architect solicit/advertise for work?

 

Architects are generally not allowed to advertise their professional services or let their names be included in any advertisements or forms of publicity. There are a few exceptions to this rule(( Article 2(1) (xvv), Architects (Professional Conduct) Regulations, 1989.)):

  • He/she can publish a notice of change in address on three occasions and his/her clients can be informed by post.
  • He/she can put his name outside his/her office and on the building for which he/she was an Architect, in a lettering not exceeding 10 cms.
  • He/she can publish advertisements which include the name and address of the Architect for calling of tenders, staff requirements and similar matters.
  • His/her name can be associated with illustrations and descriptions of his work in the press or other public media but he shall not give or accept any payment for such appearances.
  • His/her name can appear in advertisements inserted in the press by suppliers or manufacturers of materials used in a building he has designed, provided his name is included in a pretentious manner and he does not accept any payment for its use.
  • His/her name can appear in brochures prepared by his/her Clients for the purpose of advertising or promoting projects for which he has been hired.
  • He/she can publish brochures, pamphlets describing his/her experience and capabilities for distribution to those potential Clients whom he/she can identify by name and position.
  •  His/her name can appear in the classified columns of the trade / professional directory and/or telephone directory/ website.

How does the law ensure that a doctor does not unfairly favour a Pharmaceutical Company or Allied Health Sector Industry while treating patients?

 

Indian Medical Council regulations provide measures to ensure that a physician maintains their professional autonomy. It states that the physician or doctor shall not accept anything from any pharmaceutical or allied health sector industry. This includes:(( Regulation 6.8, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002))

  • Gifts
  • Travel Facilities
  • Hospitality
  • Cash or monetary grants

Moreover, a medical practitioner shall not endorse any drug or product of the industry in public.

Can advocates take up other employment opportunities other than law?

An Advocate cannot be the full-time employee of any person, firm, government, corporation, or concern. If they still take up such an employment, they would have to bring it to the notice of their respective Bar Council and cease to practice as an advocate for the term of employment.(( Rule 49, Chapter II, Part VI, Bar Council of India Rules, 1975.))

Engaging in Business

An advocate cannot personally engage in business, but can be a sleeping partner in a firm. However, the nature of the firm’s business should not be against the dignity of the profession in the opinion of the State Bar Council.(( Rule 47, Chapter II, Part VI, Bar Council of India Rules, 1975.)) They cannot be Managing Directors or Secretaries of a company, but can be a part of the Board of Directors, but even then, cannot have executive duties.(( Rule 48, Chapter II, Part VI, Bar Council of India Rules, 1975.))

Family Business

If the advocate has inherited any family business, they can go with it, provided that they do not participate personally in the management.(( Rule 50, Chapter II, Part VI, Bar Council of India Rules, 1975.))

Education/Journalism

An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers.

An advocate can engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. But this will have to be according to the other rules about advertising and full-time employment.(( Rule 51, Chapter II, Part VI, Bar Council of India Rules, 1975.))

Taking up part time employment

An Advocate can also take up part-time employment after obtaining the consent of the State Bar Council.(( Rule 52, Chapter II, Part VI, Bar Council of India Rules, 1975.))

Can advocates be teachers in a law college?

Although Advocates are not allowed to take up employment, they are allowed to teach law in any educational institution under a University recognized by the University Grants Commission. You can find the list of universities here. However, they can only teach in the institution for three hours a day. They will only be considered as a part-time employee of the institution.(( Rule 3, The Advocates (Right to Take up Law Teaching) Rules, 1979.))

Can a nurse issue a medical certificate?

No, only a Registered Medical Practitioner under the Indian Medical Council Act can issue a Medical Certificate in India.(( Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, Rule 1.3.3)) Registered Medical Practitioner means a person who has gotten registered with the State Medical Council after finishing the undergraduate medical course in a college that is recognized by the state government and is approved by the Medical Council of India. Nurses cannot be categorized as Medical Practitioners and hence, do not have the authority to issue a medical certificate.

Can clinical psychologists issue medical certificates?

Only Registered Medical Practitioners under the Indian Medical Council Act can issue Medical Certificates in India. Registered Medical Practitioner means a person who has gotten registered with the State Medical Council after finishing the undergraduate medical course in a college that is recognised by the State government and approved by the Medical Council of India.(( Section 2(g)(ii), The Mental Healthcare Act, 2017.)) A clinical psychologist does not have a medical degree but requires a Post-Graduate degree in Psychology/Clinical-Psychology/Applied-Psychology and a Master of Philosophy in Clinical Psychology or Medical and Social Psychology. Therefore, clinical psychologists can issue reports and certificates only in special circumstances. A clinical psychologist is required to issue a certificate in cases where a person is admitted to a mental facility against their will, stating that a person does not have the capacity to consent or there is a risk to self, others, or personal or public property; and the person is not able to take care of themself due to the mental illness.(( Section 89, The Mental Healthcare Act, 2017.))

Can a person practice architecture without getting registered under the Architects Act?

The Architects Act(( Section 37, The Architects Act, 1972)) only prohibits the use of the title of an ‘architect’ if a person is not qualified or registered under the Act. However, it does not prohibit a person from carrying out the practice of architecture including designing, supervising or work of construction, even if they are not registered under the Act.(( Council of Architecture v. Mr Mukesh Goyal & Ors (Civil Appeal No 1819 of 2020), https://main.sci.gov.in/supremecourt/2014/21001/21001_2014_3_1501_21539_Judgement_17-Mar-2020.pdf.))

Can an advocate represent a family member in a civil suit or criminal case?

An advocate can represent their family members, except in the following situations:(( Rules on Professional Standards, The Bar Council of India.))

  • An advocate shall not appear in any case in which the outcome of the case will benefit him/her monetarily.  For example, an advocate cannot represent a person in a suit for the partition of a Joint Family Property in which he/she has a share.
  • An advocate shall not appear in a case in which he/she is or can be a witness to the case. For example, an advocate cannot appear in a case where his one family member is accused of hitting the other family member.

An advocate shall not practice in a court where he/she is related to the judge  as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
Failure to follow these standards may result in disciplinary actions against the advocate.

Can an architect be held liable for building collapses and illegal structures?

An architect can be held responsible for any structural flaws or defects in the building for which he/she was hired, for a maximum period of three years after the building is handed over to or occupied by the owner (whichever is earlier). This can lead to a consumer protection case as it is a deficiency in the service provided by the architect.(( Architects Professional Guidelines, Council of Architecture, point 6, https://www.coa.gov.in/index1.php?lang=1&level=1&sublinkid=271&lid=250.)) An architect is not responsible if the damage to the building has occurred in the following circumstances(( Architects Professional Guidelines, Council of Architecture, point 4.3 https://www.coa.gov.in/index1.php?lang=1&level=1&sublinkid=271&lid=250.)) :

  •  The building is used for the purposes other than for which it has been designed.
  •  Any changes to the building carried out by the owner without the consent or approval of the architect who designed and/ or supervised the construction of the building.
  • Any changes, alterations or modifications are carried out by consulting another architect without the knowledge and consent of the architect hired initially or without obtaining No Objection Certificate from him.
  • Illegal/unauthorised changes, alteration, renovations or modifications carried out by the owners.
  •  Any compromise with the safety norms by the owner.
  • Distress due to leakage from terrace, toilets, water logging within the vicinity of the building and that would affect the strength/stability of the structure or general well-being.
  • Lack of periodical maintenance.
  • Damages are caused by any `specialised consultants’  hired for design and supervision work, who were appointed/ engaged in consultation with the Client.
  • Damages are caused to the building for reasons beyond the control of the architect.

Can nurses provide medicines or change the prescription of medication without doctor’s orders?

Nurses have the responsibility of monitoring the condition of the patients and administering medication/medicines at regular intervals. They assist doctors and help set up medical equipment in operation theaters and clinical laboratories. They also assist the doctors in telling the medical condition of patients.(( Nursing Prospects,  https://www.nhp.gov.in/nursing_pg)) Currently, under the National Medical Commission Act of 2019, nurses are authorised to independently prescribe specific medicines in primary and preventive healthcare. In cases other than primary and preventive healthcare, they can prescribe medicines only under the supervision of doctors.

What is attorney-client privilege?

An attorney-client privilege is a protection given to the communications that take place between the advocate and their client in the course of their professional relationship. Any person who seeks advice from the advocate or attorney registered under the Advocates Act, would have the benefit of the privilege. An advocate is not allowed to disclose any information received by the client or the contents of any document used for the purpose of such relationship unless the client allows the advocate to disclose any such information. This privilege continues even after the termination of this professional relationship. However, it does not provide protection to any communication or advice received before the beginning or after the end of the employment, only during. The privilege does not extend to any communication that is made for performing any illegal purpose or if any crime or fraud has been committed by the client after entering into this professional relationship. Further, if the client discloses something to their advocate and the advocate is called as a witness then under such circumstances the advocate can disclose such information.(( The Indian Evidence Act, 1872 ( Act no.1 of 1872), s. 126.)) For example, if a client discloses to their lawyer that they wish to take a bribe for performing their official duties,  this communication being made for an illegal purpose will not be covered under the Attorney-client privilege and a lawyer can disclose this information in the court of law.

Can I withdraw my acceptance of a job offer after I have accepted it?

If you have accepted the job offer before you have signed an appointment letter or employment contract, you can withdraw your acceptance. This applies to the employer as well. The employer may revoke the job offer after you’ve accepted it but before you’ve signed any paperwork.

If you accepted a job offer verbally or through writing and you and the employer did not intend to enter into any further formal contract, then the acceptance can be considered as final. Due to this finality, the employer may take action against you for withdrawing from a final contract.

However, if you did intend to enter into a contract after a verbal/written acceptance of a job offer, the employer may not take any action towards you, for rejecting the job offer at this stage.

What will happen If I violate the confidentiality/non-disclosure clause in my employment contract?

If you violate the confidentiality/non-disclosure clause in your employment contract, your employer may file a civil or a criminal case against you.

Your employer may file a civil case if they want to stop you from sharing any information or if they want to get monetary compensation from you for violating the terms of the contract.

Your employer can also file a criminal case against you for violating the confidentiality clause and you may be charged with:

  • Theft (ex. documents)
  • Hacking
  • Causing damage to a computer system
  • Tampering with computer source document
  • Violating the privacy policy of the company

However, it is important to note that using your own knowledge, skill, and experience at your new job, even if it was acquired during the course of employment at your previous company will not be considered confidential information or trade secrets.

Why is it important to understand the terms in your employment contract?

While discussing the terms given to you in the offer letter by your employer or before signing the contract, it is important to negotiate if you are unhappy with the terms. Keep in mind the following:

  • Understand and state the value you bring to the organization
  • Be aware of the technical terms (legal and non-legal) in the contract
  • Make your contract is personalized
  • Make sure you are not restricted from gaining employment in any other place once you resign
  • If anything sounds unfair or unreasonable, talk to your employer
  • Changing the terms of your contract is hard after signing it.

What is a HR policy?

HR policy or Human Resource policies are an organization’s guidelines  to manage its employees. It provides guidance to employees and employers on how the organization functions and provides for strict rules on things you can and cannot do in the organization. For example, the HR policy will specify the manner in which you have to inform your employer that you are taking leave. Many employment contracts refer to the HR policy and not following the HR policy may lead to disputes with your employer, which in turn may result in termination.

What is a joining bonus?

A joining bonus is an amount of money paid to a new employee as an incentive to join that company. A joining bonus may be offered in these situations:

  • When your new employer wants you to join as soon as possible, they may offer you a joining bonus to quit your old office and forgo the notice period.
  • When a company, especially a start-up, wants to persuade you to join.