Theme: Labour & Employment

Settlement of the crime of Child Labour

If you have failed to comply with the provisions of the Act or the Rules of the child labour law then the law provides alternatives to criminal prosecution. The law allows you to as they say in legal terms “Compound Offences”. Compounding means to settle. You can compound the offence committed if you are one of the two categories of persons:

  • Someone who commits an offence for the first time.
  • A parent or a guardian who commits an offence by not complying with the child labour provisions and law.

To compound an offence, follow these steps:

  1. You should make an application and approach the District Magistrate only after paying the money for the application.
  2. The money to be paid with the application to the Central Government has to be:
    • 50% of the maximum fine of the offence
    • You will be levied an additional 25% of the maximum fine for the offence if you don’t pay the amount within the specified period.
  3. Once you pay the amount then the District Magistrate will issue you a “Certificate of Compounding”.

If you fail to pay the amount, then the proceedings of the case will be continued in accordance with the child labour laws that is, you can be tried and punished, but if you do pay the amount, then you cannot be taken to court for the offence since you have already paid and settled it.

General Duties of a Clinical Psychologist

Given below are some of the duties of a clinical psychologist:

Advertising Services

A clinical psychologist should not:

  • Solicit any person with disabilities, directly or indirectly. This includes advertisements, circulars, hand-bills etc. However, clinical psychologists can formally announce through the press about starting/resumption of practice, change of practice, change of address, winding up of practice, and temporary absence from practice.(( Regulation 3, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Display qualifications on the sign board, letter head pad, prescription slip, visiting card, certificate, report and other documents that carry the psychologist’s signature. The Registration Certificate should also be fixed in the place of practice, in a clearly visible manner.(( Regulation 8, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Not undertake practice in any field other than the psychologist’s field of specialization.(( Regulation 11(k), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Fee and Payment

Clinical psychologists should not charge an exorbitant fee. Also, a psychologist should not enter into a deal of ‘No payment, no cure’.(( Regulation 9, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Details of Patients

Clinical psychologists should maintain a register of the details of patients, prescriptions issued, fees charged etc.(( Regulation 13, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Moreover, clinical psychologists have the duty to maintain confidentiality. This includes keeping the information about their patient’s mental health, mental healthcare treatment, and physical healthcare confidential.(( Section 23, Mental Health Act, 2017))

Treatment and Care of Patients

A clinical psychologist should undertake rehabilitation or treatment of people with disabilities at regular and required intervals, or the proper time.(( Regulation 11(h), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998)) However, they should not:

  • Exaggerate the course of disease or the gravity of the condition of any person with disability.(( Regulation 10, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Indulge in any indecent activity or have any improper relations.(( Regulation 11(b) and 11(c)The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Make use of harsh and rough language with any person with disability.(( Regulation 11(d), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Take undue advantage of the condition of a person with disability.(( Regulation 11(f), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Intentionally and knowingly neglect any person with disability.(( Regulation 11(i), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))
  • Avail or attempt to avail any benefit meant for people with disability.(( Regulation 11(j), The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Violation of these duties will qualify as misconduct and can make a psychologist liable to disciplinary proceedings by the Rehabilitation Council of India.(( Regulation 15, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998))

Complaints against Employer

If your employer has withheld any payment or maternity benefit from you or has dismissed you on account of your maternity leave, then you can approach the following authorities:

Inspector

You can approach the inspector to make a complaint. The inspector may make an inquiry on his own or after receiving a complaint, and pass orders based on the case. (( Section 17(1) and Section 17(2), The Maternity Benefit Act, 1961.)) Commonly, the inspectors appointed under this law are labour regional commissioners. To know which officers have been designated as inspectors, click here.

You can appeal the decision of the inspector to the Labour Court. You should file the appeal within 30 days from the date on which the decision is communicated to you. (( Section 17(3), The Maternity Benefit Act, 1961.)) However, if you do not file an appeal then the decision of the inspector is final. (( Section 17(4), The Maternity Benefit Act, 1961.)) You can request the advice of a lawyer for the same.

National and State Commissions for Women

The National Commission for Women (NCW) is a national-level government organization that is empowered to investigate complaints related to issues faced by women. The NCW will help you by:

  • Monitoring and expediting the investigations being led by the police.
  • Providing counselling or a hearing before the NCW. This is done to resolve disputes between the two parties.

You can get in touch with them by either calling the helpline number 1091, or sending an email to ncw@nic.in, or filing an online complaint. Further, you can also approach the State Commission of Women situated in your state, and ask them for help.

Forming an Internal Complaints Committee

Workplaces with more than 10 employees are required to set up a committee that specifically handles cases of Sexual Harassment. This is known as the Internal Committee. It must have(( Section 4(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  •  A presiding officer, who is a woman employed at a senior level
  •  Three students, if the matter involves students
  •  One member from a non-government organisation or association committed to the cause of women, or a person familiar with sexual harassment issues. This member will be paid.
  •  Women as at least half of its members
  •  No person in senior administrative positions as a member such as Vice-chancellor, Registrar, Dean, or head of department
  •  A three-year term for members. Higher education institutions may also employ a system where one-third of the members change every year.

If the presiding officer acts in violation of their powers, they will be removed and a new nomination will take place((Section 4(5), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))

The Internal Committee has to follow the regulations for taking complaints and making inquiries in a reasonable amount of time. The company or institution has to give the Internal Complaints Committee the things they need to make inquiries.

Non-Compete Clause

A non-compete clause in an employment contract restricts a current employee from competing with their employer in the same or similar area of business as the employer. Typically, this restriction is not limited only to the duration of employment but also for a specified period after the employment is terminated or concluded.

Some examples are:

  • If H is in the business of manufacturing air purifiers with a specific technology then its employee Y cannot start a rival business with the same technology.
  • Harpeet Singh Bedi is a salesman at AYS Computers, with whom he has a non-compete clause. If Harpeet starts a business, Rocket Sales Corporation, which is similar to AYS, while still in AYS’s employment, he is violating the terms of his contract and may be sued, as the clause specifically forbids him from doing so.

Child Labour Rehabilitation cum Welfare Fund

A Child Labour Rehabilitation-cum-Welfare Fund is a fund which is established for every one or two districts. The fine paid by the employer is deposited into this Fund.

Further, the Government has to deposit Rs.15000 more for each for each child or adolescent for whom the employer has been fined.

This Fund is managed by a Bank. Any interest on the money in the bank, will go to the child.

Proof of Pregnancy/Miscarriage/Abortion/Tubectomy/Operation

Proof of a pregnancy, miscarriage, abortion or tubectomy operation is necessary if you want to claim maternity benefits. You can prove the fact that you are pregnant, had a miscarriage, abortion, tubectomy operation or suffered an illness arising out of these procedures if you produce a certificate to that effect from any of the following(( Section 4, The Maternity Benefit (Mines and Circus) Rules, 1963)):

  • Registered Medical Practitioner
  • A Medical Officer of a regional hospital or a dispensary set up under the Coal Mines Welfare Organisation
  • Medical Officer of a Mines Board where the mine is situated.

The fact that a woman has been confined can also be proved by the production of a certified extract from a birth register or a certificate signed by a registered midwife. Additionally, a certificate signed by a registered midwife also proves miscarriage. The death of a woman can be proved by a certified extract from a death register.

False Complaint of Sexual Harassment

False complaints made on purpose or fake documents given to the committee are taken very seriously. If a victim or someone acting for them does either of these things, they could be punished based on the service rules of the workplace. If there are no service rules, the action taken against them can be decided by the Committee(( Section 14(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013)). As punishment they may(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)):

  • Have to give a written apology
  • Be given a warning or censure
  • Not be given a promotion
  • Not be given an increment
  • Lose their job
  • Have to have a counselling session
  • Have to do community service

Just because a victim is unable to provide enough proof to the Committee, it does not always make her complaint false(( Section 14(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). The Committee will have to find out if she made a wrong complaint on purpose.

For example, if Isha makes a complaint against Rohit but there are no witnesses, documents, or anything at all that shows there was sexual harassment, her complaint will not be seen as false. But, if Isha wrote an email to a friend telling them she was lying about the harassment happening, her complaint could be seen as malicious or false.

Non-Solicitation Clause

Poaching of Co-Workers

If there is a non-solicitation clause in your agreement, you cannot enlist other employees of the company in a business, trade, or profession that would harm the interest of the company. This restriction applies to you both while in the employment of the company and after you have left.

For example, if Harpreet Bedi leaves AYS Computers to start his own company, he cannot take employees/co-workers from AYS along with him. If he does so, he would be in violation of his contract with AYS and can be sued by them for breach of contract.

Poaching of Clients

Depending on the nature of employment, in some cases, this restriction on solicitation extends to customers of the company you are employed with as well. If you are leaving your current company to join a competing company or to start your own, you cannot take clients of the workplace you are leaving with you. This will affect the business of your ex-employer and you can be sued.

For example, if Lokesh Sharma leaves XYZ Ltd. to start his own company, he cannot take clients from XYZ Ltd. along with him while leaving. If he does so, he would be violating his contract with XYZ Ltd. and can be sued for breach of contract.