Theme: Labour & Employment

Is building an Insanitary Latrine unlawful?

It is unlawful and an offence under the Manual Scavengers and Their Rehabilitation Act, 2013 for any person, municipality, panchayat or agency to build an insanitary latrine that requires human waste to be removed manually by a person before the waste has properly decomposed.

Local authorities must carry out a survey of insanitary latrines in their area and publish a list of all the identified latrines. The local authorities are responsible for the building and maintenance of these community sanitary latrines and must make sure that they are functional and hygienic.

The punishment for first-time offenders constructing or engaging or employing someone to construct an insanitary latrine is jail time up to one year as well as a fine for up to Rs. 50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs. 1,00,000.

Who can seek Maternity Benefits?

You can seek maternity benefits if you are a woman and if you are:

  • Pregnant for the first time
  • Pregnant with one child or 2 children already
  • Adopting a child below the age of 3 months (( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))
  • Having a child through a surrogate (( Section5(4), The Maternity Benefit (Amendment) Act, 2017.))
  • Recovering from a miscarriage, abortion or tubectomy operation

You can enjoy maternity benefits such as taking a period of leave and getting paid during this period. However, you can only enjoy such benefits if you have worked for an employer for a minimum of 80 days in the last 12 months before your delivery. (( Section 5(2), The Maternity Benefit Act, 1961.)) This applies to all women who are pregnant, irrespective of age or marital status. However, this shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. (( Proviso, Section 5(2), The Maternity Benefit Act, 1961))

Currently, under the law, only women can seek maternity benefits. Men or persons who identify with other genders do not have an option to seek the benefits. However, you can check with the internal policy of your organization as it may provide for gender-neutral pregnancy leaves or paternity leaves.

Types of employment

Regular employee

Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law. (( Indu Joshi Vs. State of Uttarakhand and Ors. 2013 (139) FLR 439; Rachna Chaurasiya Vs. State of U.P. and Ors. 2017 (6) ALJ 454))

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis(( Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT))) on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. (( Anju Sharma Vs. Lt. Governor, NCT of Delhi and Ors. In The Central Administrative Tribunal Principal Bench At New Delhi O.A. No. 543/2011; Municipal Corporation of Delhi Vs Female Workers (Muster Roll) and Ors. AIR 2000 SC 1274; Geeta Sharma Vs. Union of India RLW2001(4) Raj 637.))

Contractual employee

Maternity leave benefits are also accorded to contractual employees. (( Priyanka Gujarkar Shrivastava Vs. Registrar General and Ors. 2017 Lab IC 1646; Shanti Mehra Vs. State of Uttarakhand and Ors. 2017(2) UC 1438; State of H.P. Vs. Sudesh Kumari 2015 (145) FLR 516.)) Further, contractual employees are also entitled to 26 weeks of maternity leave. (( Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797)) However, a woman cannot avail maternity benefits after the expiry of the contractual period. (( Bharti Gupta Vs. Respondent: Rail India Technical and Economical Services Ltd. (Rites) and Ors. 123 (2005) DLT 138; Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department W.P. (C.) No. 8884/2019 DHC.))

Victims of Sexual Harassment at Workplace

If you are a working woman in any capacity as given under, you will be protected from being subjected to sexual harassment at the workplace no matter the terms or conditions of employment, where they are employed or if they are simply visiting a place of work1(( Section 2(a), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).

The law currently only recognizes women as possible victims of sexual harassment1. Men who face sexual harassment at work by either a woman or a man, are not protected in the same way as women. However, this varies according to the policy of the organization, which may cover men as well.

Women have legal protection if they are facing sexual harassment and can be considered any of the following:

  • Employee
  • A full-time employee
  • A part-time employee
  • A contractual employee
  • Working for compensation
  • Any woman in relation to any kind of a workplace, like an office, a household, etc.

Important details in an Employment Contract

All contracts start with the description of who you are, your role in the organization and details of your job. This is an example of how the first term of your employment contract would look like:

“XYZ Future Ltd. (“XYZ”), is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Your Name 

In an employment contract, your name has to be expressly written. The names of the parties involved will be the first and most important detail in your employment contract. In the example given above, it is clear that XYZ is hiring only Abhinav for the job.

Organization’s Name

The official and proper name of the organization has to be in the contract. It should be mentioned that you are being hired by such an organization. In the example given above, it is clearly given that XYZ Future Ltd (“XYZ”) is the organization hiring for the job.

Your Employer’s Name

If you are being hired by an organization, then the name of the party hiring you would be the organization itself. Either the head of the organization or the head of human resources department (HR) will sign your contract on behalf of the organization.

If you are being hired by an individual, your contract will specifically have your employer’s name and only your employer will sign your contract.

For example: “Dr. Raj Sharma, is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Job Description

The employment contract will have the description of the position you are being hired for and what the terms of your employment are, i.e. what you are expected to do. In the example given above, the job description for Abhinav is “Lead Architect”. His contract will mention that he is being hired for that post and will also include what his work as a lead architect would entail.

Employment Period

Contracts are usually either for a specific period of time or for specific tasks. The employment contract will state the period of time you are being hired for. In the example given above, the period has been specified as 12 months with effect from 15 February, 2019.

In some cases, employers might even add a probation period. This means that once hired, you will be on probation for a specific period of time. After the probation period expires, your employer will assess your work and capabilities and decide whether to confirm your employment or not.

Salary and Other Allowances

The contract has to specify your salary amount in numerals as well as in words. If you do want to modify this amount, make sure you do this before signing the contract as you cannot negotiate your salary amount until the contract expires. Keep in mind that you can ask for a raise in your salary based on the competitive market rates for your job position, if you have previous work experience or if you hold any degrees or certificates in higher education.

Some other allowances that may be mentioned in the contract or in the HR policy are:

  • Relocation allowances, if you relocate to another city for the job provided by the employer.
  • Reimbursement for any work-related expenses.

Employing children under 14

It is illegal to employ or allow children under the age of 14 in any form of occupation. Employers, parents or any guardian in charge of a child who allows a child to work in any type of occupation will be punished.

However, there are two exceptions. The Government allows children to work:

If you know of any acts of child labour where the child is below the age of 14, please report the crime.

What is the minimum wage rate?

Employers must pay every employee at least the minimum rate of wages fixed and notified by the concerned Government(( Section 5, Code on Wages, 2019.)), which will fix a minimum wage rate for:

  • Time work (wage rate can be fixed on an hourly, daily or monthly basis).
  • Piece work (for employees engaged in piece work, the Government can fix a minimum wage rate on a time work basis).

If an employee does two or more types of work having different minimum rates of wages, the employer will pay them the appropriate minimum wages for the time spent in each class of work(( Section 11, Code on Wages, 2019.)). For example, consider that the minimum wage for one type of work is Rupees twenty per hour, and Rupees ten per hour for the other type. If the employee spends 2 hours on each type, they will get (20*2) + (10*2) = ₹60 for 4 hours(( Section 11, The Code on Wages, 2019.)).
The concerned Government will review or revise the minimum wage rate usually every five years(( Section 8, Code on Wages, 2019.)).

An Advocate’s Duties to Clients

There are many duties that an advocate has to fulfil towards clients. Some of them include:

Accepting and withdrawing from cases

An advocate should:

  • Accept any case, unless exceptional circumstances exist.(( Rule 11, Chapter II, Part VI, Bar Council of India Rules, 1975)) The Supreme Court has said that a lawyer cannot refuse a brief if a client is willing to pay his fee, and the lawyer is not otherwise engaged.(( A.S. Mohammed Rafi v. State of Tamil Nadu, Criminal Appeal No. 2310 of 2010)) The advocate’s fee will be based on their professional standing and the nature of the case.
  • Not withdraw from a case after accepting it. However, the advocate can withdraw if there is sufficient cause, after giving a reasonable and sufficient notice to the client. If the lawyer withdraws from a case, they have to refund any fee that has not been earned.(( Rule 12, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not accept or appear in a case for which the advocate might appear as a witness.(( Rule 13, Chapter II, Part VI, Bar Council of India Rules, 1975))

Loyalty to the client

An advocate must:

  • Make full and frank disclosure to the client about the advocate’s connection towards the other parties and any other interest in the case.(( Rule 14, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Uphold the interests of the client by all fair and honorable means.  Advocates should be loyal to this principle and should not let their personal beliefs about a client’s guilt stop them from accepting a case. Regardless of their personal opinion on the guilt of a client, advocates should defend the client.(( Rule 15, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not work for the conviction of an innocent person. For instance, advocates should not suppress material that could establish the innocence of a person in a criminal case.(( Rule 16, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Only work as per the instruction of the client or the client’s agent.(( Rule 19, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not act, appear or argue for the opposite party if the advocate has advised, acted, appeared or pleaded for a client at any stage of a lawsuit.(( Rule 33, Chapter II, Part VI, Bar Council of India Rules, 1975))

Upholding interests of the client

Advocates have to make sure that they:

  • Do not specify a fee that is dependent on the result of the case. An advocate should not agree to share the benefits that a client will get from a case.(( Rule 20, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Do not abuse or take advantage of the trust of the client.(( Rule 24, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Keep accounts of the money entrusted to them by the client.(( Rule 25, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Do not accept a fee less than a fee which can be taxed, if the client is able to pay it.(( Rule 38, Chapter II, Part VI, Bar Council of India Rules, 1975))

Failure to obey any of these duties may qualify for ‘Professional Misconduct’ by the Advocate, and a client can lodge a complaint against the advocate in the appropriate forum.

Who is responsible for Demolishing or Converting an Insanitary latrine?

The person who occupies the property on which an ‘insanitary latrine’ exists has to demolish or convert it. If more than one person owns the property on which the insanitary latrine is built, the costs have to be paid by the owner (if they are one of the occupiers) or equally by all of them.

While the State Government could choose to help occupiers with the conversion process, the occupier cannot use the government’s inaction as an excuse to maintain an insanitary latrine beyond 9 months. In case the occupier does not destroy or convert an insanitary latrine within 9 months, the local authority has to take over after giving a notice of 21 days. The authority can then recover the costs from the occupier.

The punishment for first-time offenders is jail time up to one year as well as a fine for up to Rs.50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs.1,00,000.

Maternity Leave

You are entitled to leave from work when you are having a child. However, this differs based on certain circumstances:

If you are pregnant for the first time or you already have one child

You can claim a maximum of 26 weeks of leave if you are pregnant for the first time or if you already have one child. However, you cannot take more than 8 weeks of leave before the expected delivery date. (( Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.))

If you already have 2 children

If you have 2 or more surviving children, then you can take 12 weeks of leave. For example, if a woman has 2 children already and is pregnant with her 3rd child, then she can take only 12 weeks of maternity leave. However,  only 6 weeks, can be taken before delivery. (( Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.))

Adopting a child/ Commissioning mother

A woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to maternity leave. The period of leave is for 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother. (( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))
A commissioning mother is also entitled to all the benefits an employee could have post the delivery of the child, except the leave involving health of mother after delivery. (( P. Geetha Vs.The Kerala Livestock Development Board Ltd. 2015 (1) KHC 165; Sadhna Agrawal Vs. State of Chhattisgarh and Ors. 2017 Lab IC 617.))

If you are suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, abortion or tubectomy operation, you will be entitled to an additional month of leave with wages at the rate of maternity benefit. (( Section 10, The Maternity Benefit Act, 1961.) You will have to submit proof of the illness for the same.

Actions and Behaviours seen as Sexual Harassment

According to law, several acts can be considered as sexual harassment. Most of these acts include a discernible sexual element. For example, if Seema’s boss asks her to have sex with him, or touches her in a way that makes her feel uncomfortable. Some of these acts are listed below. (( Section 2(n), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):

  • Touching or any other form of physical contact that you do not want.
  • Asking for or demanding sex or any other sexual acts.
  • Saying things that are sexual in nature.
  • Showing you pornography in any form that you do not want to see, for example, videos, magazines, or books.
  • Any other actions that are sexual, including things that are said, things that are written, or touching.

Additionally, certain circumstances connected with any act or behaviour of sexual harassment may amount to sexual harassment of a woman. These include (( Section 3(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment ; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work
environment for her; or
(v) humiliating treatment likely to affect her health or safety.

This government handbook can help you understand what actions are seen as sexual harassment.

Determining age of Child

If you as an employer are unsure if the child is below 14 years or above 14 years of age, then the age of the child will be determined by a medical authority who will look into the following three documents while determining the age:

  • Aadhar card of the child or adolescent.
  • Birth certificate from school, or the matriculation or a certificate from an examination Board.
  • Birth certificate of the child or adolescent given by a corporation or a municipal authority or a panchayat.

When these three documents are absent, then the medical authority will do an ossification test or any other latest age determination test to find out the age of the child.

As an employer, you should have a certificate of age for the child, in case the inspector wants to determine the age of the child. If the inspector finds out that you have not obtained a certificate of age for the child, he will specifically instruct you to obtain it from a medical authority.

What if an employee works less or more than the minimum number of hours?

If a daily wage employee works for less than the minimum number of hours because the employer did not give enough work, they still have the right to get wages for a full working day. However, if they failed to work for the  minimum number of hours because they were unwilling to work, they cannot claim this right(( Section 10, Code on Wages, 2019.)).
If an employee works for more than the minimum number of hours, the employer has to pay them for every extra hour that they work, at an overtime rate of at least twice the normal rate of wages(( Section 14, Code on Wages, 2019.)).

Complaining against an Advocate

Complaints against an advocate can be with regard to professional or other misconduct by the advocate.(( Section 35, Advocates Act, 1961)) Actions that qualify as ‘misconduct’ cannot be defined with an exhaustive list. What should be kept in mind is the nobility of the job of an advocate, and the high standard that is expected of advocates by society.(( Noratanmal Chouraria v. MR Murali & Another, Civil Appeal 5476 of 1999)) Instances that are not explicitly mentioned in the law have led to disciplinary actions in the past, such as when an advocate tried to assault a client with a knife.(( Hikmat Ali Khan v. Ishwar Prasad Arya, 1997 (3) SC 131))

Forum to Complain

The State Bar Council is the appropriate forum to lodge a complaint against an advocate.(( Section 35(1), Advocates Act, 1961)) Upon receiving a complaint, or on its own motion, the State Bar Council can refer a case of misconduct to one of its Disciplinary Committees.(( Section 35(1);Section 35 (1A), Advocates Act, 1961))

Further, the disciplinary committee of the Bar Council of India also has the power to withdraw any pending proceeding from the State Bar Council and attend to the matter.(( Section 36(2), Advocates Act, 1961))

If a case has been pending before the State Bar Council for more than a year since the receipt of complaint, the case shall be transferred to the Bar Council of India.(( Section 36B (1), Advocates Act, 1961)) If a person is not satisfied with the decision of the State Bar Council, they have the right to appeal to the Bar Council of India within 60 days of the communication of the decision.(( Section 37(1), Advocates Act, 1961)) If the person is still aggrieved by the decision of the Bar Council of India, they can approach the Supreme Court within 60 days of the communication of the decision.(( Section 38, Advocates Act, 1961))

 Procedure to complain

State Bar Councils accept complaints against an advocate in the form of a petition, duly signed and verified. If you want to find the format, you can approach your State Bar Council which will have a prescribed standard format of complaint, along with the fees. Additionally, formats used can include languages such as English, Hindi or the language of the respective State. (( Rule 1, Chapter 1, Part VII, Bar Council of India Rules, 1975))

After a person submits the complaint, the Disciplinary Committee of the State Bar Council will inquire into the matter.

Punishing an Advocate

When a complaint has been made against an advocate, the Disciplinary Committee of the State Bar Council will give an opportunity for the advocate to defend themself. Further, the Advocate General of the State will also be present during the inquiry. After the inquiry, the Committee will either:

  1. Reprimand the advocate;
  2. Suspend the advocate for the time being;
  3. Remove the advocate’s name from the State roll;
  4. Dismiss the complaint.(( Section 35, Advocates Act, 1961))

Is it legal to employ a Manual Scavenger?

No, it is illegal to employ someone as a manual scavenger in India. It is also unlawful for anyone (including municipalities and panchayats) to employ any person for the cleaning of a sewer or a septic tank without the necessary protective gear.

People who do so face the following repercussions.

Employing someone as a manual scavenger

The punishment for employing a manual scavenger, for a first-time offence is jail time up to one year as well as a fine up to Rs.50,000. If someone commits the offence again, then the punishment is jail time up to two years and a fine up to Rs.1,00,000.

Employing a person for hazardous cleaning of a sewer or a septic tank

The punishment for employing a person for hazardous cleaning of a sewer or septic tank for a first-time offence is jail time up to 2 years and a fine up to Rs. 2,00,000. If someone commits the offence again, then the punishment is jail time is up to 5 years and fine up to Rs. 5,00,000.

A company employing someone as a manual scavenger

When a company commits the offence of manual scavenging, not only will it be considered guilty of the crime, but so will any employees of that company who allowed the offence to take place. This can include directors, managers, secretaries, and other officers of the company.

For more information, visit the website of National Commission for Safai Karamcharis.

Salary during Maternity Leave

Employers have to pay women for the period during which they are absent from work as a result of their pregnancy. This is known as a maternity benefit. (( Section 2(h), The Maternity Benefit Act, 1961.))

  • An employer has to pay you for a period starting from the day of your delivery to six weeks afterwards. This period also includes the day of the  delivery. (( Section 5(1), The Maternity Benefit Act, 1961.))
  • However, you can only enjoy such benefits if you have worked for that employer for a minimum of 80 days in the last 12 months before your delivery. (( Section 5(2), The Maternity Benefit Act, 1961.))

Calculating Payment Amount/Average Wages

During this period of pregnancy, employers have to pay you the maternity benefit in the form of an average daily wage. (( Section 5(1), The Maternity Benefit Act, 1961.)) The calculation for the average daily wage is based upon the average of your wages for the 3 months before the date on which you start your pregnancy leave. The following  aspects are considered while calculating wages:

  • To calculate the number of days a woman has worked in the 3 months before the pregnancy leave, the employer will also consider the days for which the woman was fired or laid-off or on a holiday with wages.
  • If the calculation given above is not possible, the wage amount is considered to be 10 rupees per day. Even if calculation is possible, the higher amount out of the two is paid to the woman. (( Explanation, Section 5(1), The Maternity Benefit Act, 1961.))

Medical Bonus

If you did not take time off before your delivery and your employer does not provide free post-natal care,  you are also entitled to receive a medical bonus of 1000 rupees from your employer. (( Section 8(1), The Maternity Benefit Act, 1961.))

Workplaces where you can File a Complaint

Sexual harassment can happen to you in these workplaces:

  • Government based organizations: Any establishment, such as offices, branches, undertakings, etc.that is owned, controlled, established or financed wholly or substantially by the government, local authority or a cooperative society.
  • Private sector based organizations: Any private establishment, such as non-governmental organizations, ventures, societies, trusts, etc., carrying on professional, commercial, vocational, educational,  entertainment-based, industrial, health-based or financial activities.
  • Unorganized sector based workplaces: Any enterprise which works in sale of goods or provides any kind of service, where the number of employees is less than 10.
  • Any hospitals and nursing homes
  • Any household 
  • Any sports institute, stadium, sports complex, etc., used for training, sports or related activities. This includes residential complexes also.
  • Any place visited by an employee due to the employment. This includes employer-provided transportation for any such journey. For example, if an employee working in an organization in Delhi needs to visit an office in Mumbai, the transportation as well as the Mumbai office will fall within the purview of this Act.

If you have faced sexual harassment (( The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013)) at any of the workplaces given above, file a complaint with the Internal Committee.

Job Offer

When an employer is willing to hire you and gives you a job offer, they must:

  • Communicate to you about the offer
  • Specify the job role and the terms of the job
  • Offer some remuneration/salary/benefits in return for your work

Communication of the Offer

An employer has to communicate the willingness to hire you through a job offer in clear words, either in writing or verbally.

However, it is better to have the offer in writing, as it is easier to prove that the offer was indeed made, if your employer denies it in the future.

Job Role and Terms of Job

  • The offer made to you should be for a specific position or a role. If the offer is unclear, clarify the kind of job role they are interested in hiring you for. It will be hard to get out of the job, once you have taken it and signed the written contract.
  • Make sure that your job role, annual cost-to-company (CTC), benefits, monthly salary etc. are given. You should also clear up any doubts you have about the job details before you accept the offer.

Salary and Other Benefits

The nature of the job will determine your salary. Salaries are usually calculated based on the market rate for that particular job, previous work experience, and your bargaining skills. You can negotiate your salary by clearly communicating the advantage, in the form of your skillset, that you are bringing to the organization, and by utilizing your own market research regarding the salary as per industry rates.

If you are a salaried employee, your total salary will be broken up under different heads such as basic pay, dearness allowance (DA) , Provident Fund deduction, house rent allowance (HRA) etc. You will get your salary after deduction of tax at source. However, if you are not an employee, you will get your full salary amount, which is called a ‘retainership fee’.

After the job offer has been communicated to you, depending on your circumstances, you can always negotiate for additional benefits, a higher salary, or a better position. Your employer may or may not entertain such negotiations, in which case it is up to you to accept or reject the offer.

Timely Response to Offer

Your job offer may specify a time period within which you will have to reply and if you do not respond within the time given, the job offer will lapse. If there is no specific time period mentioned, you should reply to the employer within a reasonable time, either accepting or rejecting the job offer.

Employers Responsibility towards Child Artists

When child artists are being employed for work, there is an obligation on the employer to fill out Form C as given in the Child Labour (Prohibition and Regulation) Act, 1986. The employer by filling the Form C, has to promise to take responsibility in the following manner:

  • Child’s education should not be affected.
  • Child artists who are hired should be protected, given care and protection and full care of their physical and mental health should be looked into.
  • The employer should not violate the legal provisions of the child labour law.
  • The employer should take care of the child’s well being so that no sexual offences are committed.

Application for Permission

The District Magistrate (in the district where the activity is taking places) should give you an undertaking allowing the child to work. The parents or the guardian should also give approval for the work being done by the child. The undertaking will state and ensure:

  • Facilities for the physical and mental health of the child.
  • A nutritional diet of the child.
  • Clean and safe shelter for the child.
  • Compliance with all laws for the protection of children, right to education and protection against sexual offences.

Working Hours

The employer has to take note of the following points:

  • A child cannot be allowed to work for more than five hours in a day.
  • A child cannot be made to work for more than three hours without rest.
  • A child should not be made to work consecutively for more than 27 days.

When does the employer have to pay a bonus?

An employer should pay an annual minimum bonus to their employee if:

  • Their establishment has at least twenty employees
  • The employer has worked for at least thirty days in an accounting year (starting from 1st April)
  • The employee does not earn more than a specified amount in a month.

However, for the five accounting years immediately following the year in which the employer starts selling goods or giving services, they need to pay the bonus only for years in which they make a profit(( Section 26(6), Code on Wages, 2019.)).

Calculating the bonus

The bonus is eight and one-third percent of the employee’s wages, or Rupees one hundred, whichever is higher. It does not matter whether or not the employer has any allocable surplus during the previous accounting year(( Section 26, Code on Wages, 2019)).

If the allocable surplus is more than the amount of minimum bonus payable to employees, the employer must pay every employee a bonus proportionate to their wages for that accounting year (not more than twenty percent of their wages). However, if an employee has not worked for all the working days in an accounting year, they can proportionately reduce the excess bonus.

The employer should pay the bonus by crediting it in the employee’s bank account within eight months of the accounting year’s end. If the employer requests, the concerned Government can extend this by a maximum of two years.

Employees not eligible for bonus

An employee is not eligible for bonus if they have been dismissed from employment due to:

  • Fraud
  • Violent behaviour at the workplace
  • Theft or property damage
  • Conviction for sexual harassment(( Section 29, The Code on Wages, 2019.)).

Provisions for the bonus do not apply to(( Section 41, Code on Wages, 2019.)):

  • Employees of the Life Insurance Corporation of India;
  • Seamen;
  • Employees registered or listed under any scheme made under the Dock Workers (Regulation of Employment) Act, 1948;
  • Public sector employees;
  • Employees of the Indian Red Cross Society or any other similar institution;
  • Employees of Universities and other educational institutions;
  • Employees of institutions including hospitals, chambers of commerce and not-for-profit social welfare institutions;
  • Employees of the Reserve Bank of India;
  • Employees of inland water transport establishments operating on routes passing through any other country.

Who is a Pharmacist?

A pharmacist is a person who is trained to prepare, monitor and sell medicines. Under the law, a registered pharmacist(( Section 2(i), Pharmacy Act, 1948)) is a person whose name is entered in the register of the State where they are residing or carrying on the profession or business of pharmacy.

A register will include the full name and residential address of the registered person, the date of their first admission to the register, their qualifications for registration, professional address,  the name of their employer etc.(( Section 29,  Pharmacy Act, 1948))

Qualifications needed to be a pharmacist

Qualifications of a pharmacist differ from state to state. The State Pharmacy Council of each state lays down certain qualifications for a person to be registered as a pharmacist. The Pharmacy Council of India approves such qualifications.

Education/Degrees

An individual of at least 18 years can be eligible for registration as a pharmacist for the first time. After paying the required fee, their name will be added to the register of the State where they reside or carry on their pharmacy business/profession,(( Section 31, Pharmacy Act, 1948)) if they have:

  • A degree or diploma in pharmacy or pharmaceutical chemistry or a chemist and druggist diploma of an Indian University or a State Government, or a prescribed qualification granted by an authority outside India;(( Section 31(a), Pharmacy Act, 1948)) or
  • A degree of an Indian University other than a degree in pharmacy or pharmaceutical chemistry. In addition, the person should have been engaged for at least 3 years in compounding drugs in a hospital, dispensary, or another place where drugs are regularly dispensed based on prescriptions of medical practitioners;(( Section 31(b), Pharmacy Act, 1948)) or
  • Passed an examination recognised by the State Government for compounders or dispensers;(( Section 31(c), Pharmacy Act, 1948)) or
  • Been engaged for at least 5 years in compounding drugs in a hospital, dispensary, or another place in which drugs are regularly dispensed based on prescriptions of medical practitioners. This period is calculated starting from the date for application of registration as notified by the State government.(( Section 31(d), Pharmacy Act, 1948))

Other qualifications

In addition to the above qualifications, a person will be eligible for subsequent registration as a pharmacist:

  • If they are a registered pharmacist in another state.(( Section 32(1)(b), Pharmacy Act, 1948))
  • The Pharmacy Council of India can approve  qualifications granted by any authority outside India, with regard to making Indian citizens eligible for registration as  Pharmacists. The Council approves an application only after the qualification guarantees a minimum level of skill and knowledge. However, non-citizens can also qualify for registration if they come from countries where persons of Indian origin (who have the required qualifications) can practice pharmacy.(( Section 14, Pharmacy Act, 1948)) Here, to have their name entered in the register, the person should have passed a matriculation examination or any other equivalent examination.(( Section 32(1)(c);Section 14, Pharmacy Act, 1948))

How can Manual Scavengers be rehabilitated?

Both in urban and rural areas, if the officers of the Municipality or the Panchayat believe that manual scavenging may be taking place in their area of control, they have to do a survey and create a list of manual scavengers. The Municipality and the Panchayat have a duty to rehabilitate the people included in this list. The District Magistrate is responsible for rehabilitating manual scavengers in that district in accordance with this law. The District Magistrate or the State Government may assign responsibilities to subordinate officers and officers in the Municipality. The process for rehabilitation is as follows:

  • Immediate help – Give them a photo ID and some cash within 1 month.
  • Children’s education – Their children can get a government scholarship.
  • Property – The government must put in place schemes under which the person is allotted land and money to build a house or money for a built house.
  • Training for other jobs – The government has to help train either the person or another adult member of their family in other skills. The person should also be paid Rs. 3000 during the time they are undergoing training.
  • Loan – The government must put in place schemes under which the person (or another adult family member) has the option of getting a subsidy or loan with lower interest rates to help them get into another field or occupation.
  • Other Help – The government can choose to give them any other kind of legal or other help.
  • Government Schemes – The Central Government has put in place a scheme called the ‘Self Employment Scheme for Rehabilitation’ of Manual Scavengers. Read more about the scheme here. There are numerous loan schemes put in place by the National Safai Karamcharis Finance & Development Corporation which are offered through state channelling agencies. Read more about how to avail such schemes here.

Responsibility of Employers

For organisations under government or local authority control, employers are people appointed by the government or the local authorities to supervise and control the employees of an organization. These employers have ultimate control over the establishment.1 If no person is appointed as the employer, then the head of the department or the chief executive officer of the local authority will be considered to be the employer. In all other cases, such as privately-run organisations, whoever has the ultimate control over the organisation’s affairs or a manager, managing director, etc. are also considered employers.

Duties of employers

Employers have the following duties:

  • At the time of joining the employment, employers have to inform women  about every maternity benefit available under the Maternity Benefit Act and within the organization.2
    The employer cannot knowingly employ a woman during the 6 weeks following the date of her delivery, abortion or miscarriage.3
    The maternity leave starts  6 weeks before the delivery date of the woman. However, if she requests, it can start  one month before this period. During this period, the employer cannot give her arduous work, including any work that requires hours of standing or work that can negatively affect her health.4
  • Employers cannot dismiss women from their job during the maternity leave period.
  • Employers cannot deny payment of the maternity benefit to a woman eligible for such a benefit.

Punishments for Employers

Dismissal or non-payment of benefit

If an employer does not pay you the maternity benefit amount or dismisses you during your maternity leave, then he can be punished with imprisonment for up to one year and with a fine of up to Rupees Five Thousand.5

Punishment for any other violation

If your employer violates the law (The Maternity Benefit Act), then the punishment is imprisonment of up to one year, and/or a fine of up to Rupees Five Thousand.

Obstructing Inspectors

If anyone, including the employer, obstructs the Inspector from doing his duty then they will be punished with imprisonment of up to one year, and/or  a fine of up to Rupees Five Thousand.6

If you are facing trouble while seeking the benefit or for any other maternity-related reason, you have a right to file a complaint. Read more here.

  1. Section 3(d), The Maternity Benefit Act, 1961. [↩]
  2. The Maternity Benefit (Amendment) Act, 2017, Section 11(2). [↩]
  3. Section 4(1), The Maternity Benefit Act, 1961. [↩]
  4. Section 4(3) and Section 4(4), The Maternity Benefit Act, 1961. [↩]
  5. Section 21(1), The Maternity Benefit Act, 1961. [↩]
  6. Section 22, The Maternity Benefit Act, 1961. [↩]

Accused of Sexual Harassment at the Workplace

If someone says you have sexually harassed them, you should take it seriously. If you don’t come three times in a row to hearings your employer has set up, you may not get to speak before a decision is made(( Section 7(5), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)). Only women are protected from being sexually harassed at their place of work(( Section 2(a), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)), but sexual harassment can be done by anyone, male or female(( Section 2(m), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)).

Rights of Accused

  • You cannot be arrested without a warrant
  • You have the right to get a copy of the complaint within 7 working days of the complaint being filed(( Section 7(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).
  • You have the right to reply. You can submit documents and a list of witnesses within 10 working days of getting the documents from the person who accused you(( Section 7(3), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).
  • You have the right to appeal a decision made by the Internal Committee

If the Internal Committee decides that the sexual harassment claim against you is not true, you will not be punished. However, if they decide the claim is true, the Committee can give your employer or the District Officer options for how you could be punished. Please note that neither you nor the accuser will be allowed to have legal representation(( Section 7(6), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.)).

Importance of a Written Contract

You will get a written employment contract only after you accept the job offer. The written contract will include all the details of the offer letter and more details provided by the employer. With a written contract you can exert the rights given to you under the contract. Further, you are bound by the duties given in the contract. The contract will establish:

  • Your salary/remuneration.
  • Your role and job description.
  • The duration of time working with your employer.
  • The employer’s responsibilities such as following the notice period while firing an employee, payment of salary etc.
  • The employee’s responsibilities such as standard of performance of the job offered to them, following the work timings of the organization etc.
  • Remedial processes if things happen to go wrong, for example, methods of resolving disputes etc.
  • A list of all the things you are restricted from doing so that there is no conflict with your new employer. For example, non-disclosure, non-solicitation clauses.

Other purposes for which you can use the employment contract are:

  • applying to banks for loans, or when filing your tax return, you can also produce the contract as proof of employment.
  • renting a house or applying for any visa/passport application.

You should make sure that your contract covers all the important terms as it will be hard to add or change any term in your contract after you sign it.

Role of Schools in preventing Child Labour

The school has a role in preventing child labour.

The right to education of a child applies even if the child or adolescent is working as an artist or in the family business.

When the child is working in the family business and if the child hasn’t been coming to school for a consecutive period of 30 days, the Principal or Headmaster of the school, has to report the absence of any child, to the Inspector.

Further, if the members of the school are aware that the child or adolescent is engaged in any illegal work then they are required to report it.