Theme: Labour & Employment

Workplace doesn’t have an Internal Committee

If you belong to an unorganised sector or a small establishment that does not have an Internal Complaints Committee, you can approach the Local Complaints Committee that has been set up by the District Officer.

The Local Committee accepts complaints from(( Section 6(1), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  • Women working in an organisation having less than 10 employees
  • Domestic workers
  • When the complaint is against the employer himself

Fired from your Job

If your employer fires you from the job, it may either be according to the notice period or any other terms given in your contract. Your employer may terminate your job if:

Employment-Related Disputes

  • Your performance is not good.
  • You were involved in any criminal activities such as insider trading.
  • You have breached any HR policies or you have violated any code of conduct etc.
  • You have committed an act of sexual harassment at your workplace which has been proved.

Violation of Terms of your Contract

If you violate any terms of your contracts such as non-compete, non-disclosure, non- solicitation clauses, etc. then you may be fired by your employer.

Fired Without Any Specific Reason

Even if you have not violated any terms of your contract or if you are not involved in any disputes, the decision to either fire you or let you continue in the job lies with your employer. This is usually referred to as ‘termination without cause’.

Working Hours and Days of Employed Adolescents

Some general rules that should be followed when employing adolescents (except when they are working with family or government-funded/recognized schools).

In a day an adolescent:

  • Can only be made to work continuously for a maximum period of 3 (three) hours at a time.
  • Is entitled to a break of one hour.
  • Cannot be made to work for more than 6 (six) hours in a day. This includes the time they spend in waiting for work and their breaks.
  • Cannot be made to work between 7pm and 8 am.
  • Cannot be made to work more than their normal work hours.
  • Cannot be made to work with two employers in the same day.

Further, one day off every week has to be given!

This day will be specified by the employer in a notice at the workplace. The employer should not alter this specified holiday day more than once in three months.

If you don’t fulfill your duties as an employer to comply with the laws on working hours and days you can be jailed for a maximum period of a month or be fined a maximum amount of Rs. 10,000 or both.

Compensation for Sexual Harassment

The amount of money that victims will receive as compensation is based on the following things(( Section 15, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  • Mental trauma and distress caused to the victim
  • Lost job opportunities because of the sexual harassment
  • Medical treatment (physical or psychiatric) that the victim needs
  • The victim’s income and general financial status.

The Committee can decide whether this money should be paid over time in instalments or all at once.

Misconduct by a Doctor/Medical Professional

As per the law, violation of any of the doctor’s duties will qualify as ‘misconduct’ and can result in disciplinary action being taken against a doctor. Further, some other acts also qualify as ‘misconduct’ and can be complained against, like:

Improper or fraudulent activities

  • Committing adultery or improper conduct with a patient, or maintaining an improper association with a patient by abusing one’s professional position.(( Regulation 7.4, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Conviction by a court for offences involving moral turpitude*/criminal acts.(( Regulation 7.5, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Undertaking sex determination with the purpose of aborting a female foetus.(( Regulation 7.6, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Signing or giving any certificate, report, or similar document which is untrue, misleading, or improper.(( Regulation 7.7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Performing or enabling unqualified persons to perform an abortion or any illegal operation for which there is no medical, surgical or psychological reason.(( Regulation 7.9, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Confidentiality of patient information

  • Contributing to press articles and giving interviews regarding diseases and treatments which may have the effect of advertising or soliciting practices. However, medical practitioners are free to write to the press under their own name on matters of public health and hygienic living. They can also deliver public lectures and talks under their own name, and announce the same in the press.(( Regulation 7.11, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Disclosing the secrets of a patient that have been learnt in the exercise of their profession. However, disclosure is allowed:
    • in a court of law under orders of the presiding judicial officer;
    • in circumstances where there is a serious and identified risk to a specific person and /or community; and
    • in case of notifiable diseases.(( Regulation 7.14, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Publishing photographs or case reports of patients without their permission. For instance, a doctor cannot publish the patients identity in any medical or other journal in a manner. However, if the identity is not disclosed, the consent is not needed.(( Regulation 7.17, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Refusing patient treatments

  • Refusing only on religious grounds to give assistance in or conduct of sterility*, birth control, circumcision and medical termination of pregnancy when there is medical reason to do so. However, practitioners may refuse to do so if they believe that they are incompetent for the same.(( Regulation 7.15, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Conducting operations or treatments

  • Conducting operations without obtaining written consent from the husband or wife, parent or guardian in the case of a minor, or the patients themselves. Additionally, consent of both husband and wife is required in operations that result in sterility. (( Regulation 7.16, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Conducting in vitro fertilization or artificial insemination without the informed consent of the female patient, her spouse and the donor. However, the female patient should give written consent. Providing sufficient information about purpose, methods, risks, inconveniences, disappointments of the procedure and possible risks and hazards is also a duty of a doctor. (( Regulation 7.21, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Further, this is not a complete and exhaustive list of all kinds of professional misconduct. Circumstances that are not mentioned above may also qualify as professional misconduct and the responsible medical council can take action on the same.(( Regulation 8.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Remedies for Violation of Contract

For Violation of Contract

If there has been an instance of violation of your work contract, your only remedy is to go to court or arbitration. If your office has a trade union, you can approach them.

For Grievance Against Employer

If there is a grievance between you and your employer, usually the method of dispute resolution will be given in your contract. It might also be mentioned in the HR policy of your organization.

Remedies for the Employer if You Violate the Contract

If you breach the contract, the employer  can also exercise their rights and  go to court or arbitration. Your employment contract, as well as the HR policy of your organisation may mention the remedies available to the employer. Typically, they do not have provisions for the employee to proceed against the employer.

Duties of an Employer while employing adolescents

An employer employing an adolescent working in his establishment has to perform certain duties:

Maintaining a Register

As an employer you have to maintain a register which should have the following details:

  • Name and date of birth of every adolescent working at your establishment.
  • Hours and periods of work of the adolescent.
  • Intervals of rest.
  • Nature of work of any such adolescent.

Working Conditions

When an adolescent is employed for work, the Working Hours and Days and the Health and Safety has to be guaranteed to ensure that adolescent is treated fairly and humanely.

Sending the notice to the Inspector

As an employer employing a child worker you will have to send a notice to the Inspector. This has to be done within 30 days of hiring an adolescent. The notice should contain the following details:

  • Name and location of the establishment.
  • Name of the employer.
  • Nature of the employment
  • Work done by the establishment.

If you don’t fulfill your duties as an employer you can be jailed for a maximum period of a month or be fined a maximum amount of Rs. 10,000 or both.

Complaining against a Medical Professional

You can file any complaint with regard to professional misconduct to the State Medical Council or Medical Council of India for disciplinary action.(( Regulation 8.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) The list of all the State Medical Councils in India can be found here.

Procedure to complain

If the State Medical Council has not decided upon a complaint for over six months, the complainant can approach the Medical Council of India (MCI). Additionally, the MCI has the power to withdraw the case from the State Council and transfer it to themselves.(( Regulation 8.7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

If a person is not satisfied by the decision of a State Medical Council, they may go to the MCI to challenge the decision within 60 days from receiving the order by the Council. However, if 60 days have passed, then the MCI may or may not accept the complaint of the aggrieved person.(( Regulation 8.8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Punishment 

Once a complaint is received, the relevant Medical Council will hear the practitioner. Further, if the person is found guilty, the punishment will be determined by the Council. For instance, it can direct the name of the practitioner to be removed from the corresponding register altogether, or for a specified time period. This means that the practitioner will not be able to practice for that period.(( Regulation 8.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Parents making Children work

Parents and guardians will be fined for making a child below the age of 14 work in any form of employment except for family business and as child artists.

Parent or guardians allowing an adolescent to work against the law will be punished.

  • If they commit the offence for the first time then, they will not be punished.
  • If they still permit the adolescent to work in the prohibited occupations, then they will be punished with a fine of Rs. 10000.

Who is an Architect?

An architect is a person who designs buildings and advises in their construction. Indian law recognises an architect when their name and other personal details have been provided in the Register of Architects maintained by the Council of Architecture.  Once their name is listed in the Register of Architects, they are allowed to pursue his profession. Thus, a name entry in this register works as a proof of a qualified architect. There are certain ways to get a name registered, depending on the foreign or Indian qualification one may possess.(( Article 25(a), Architects Act, 1972))

  • For Indian qualification, a Bachelor Degree of Architecture awarded by Indian Universities, National Diploma in Architecture, Degree of Bachelor of Architecture (B. Arch.) awarded by the Indian Institute of Technology (IIT), Membership of the Indian Institute of Architects, etc., will be considered as a qualification.(( Schedule, Architects Act, https://www.coa.gov.in/index1.php?lang=1&level=2&sublinkid=121&lid=135))
  • For foreign qualifications recognized by the Indian government, different degrees from various countries such as UK, Australia, Germany, Switzerland, etc., are accepted. The list can be accessed here.
  • An Indian citizen who has no qualification certificate can get registered if they have been engaged in the profession for at least five years, after which Central government can consider their application for registration.(( Article 25(b), Architects Act, 1972))
  • A person can also get registered if they possess any other recognised qualification under the legal rules which may be made by the Central government under the Architects Act.(( Article 25(c), Architects Act, 1972))