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Termination of an Employee during Covid-19

Employment in India is divided into two sections, the labour sector and the employment sector. This divide comes from the definition of ‘Workman’ in the Industrial Disputes Act. The result of making such a definition and its connection to the definition of ‘factory’ lead to the specific conundrum, where a majority of the labour law statutes in India don’t apply to a large section of employees in India. This paper focusses on that part of the Indian workforce in the organized sector that is dependent on employment contracts for their continued relationship with their employee. Specifically, this paper wants to discuss this relationship between employer and employee in the specific context of the current pandemic and the lockdown. It is well known that employers have been cutting down on their workforce in light of dwindling finances and prospects for recovery for the economy. The government has swooped in and has attempted to remedy the situation by instituting nodal offices to the labour departments that will receive complaints about unfair and unethical termination of employees.

In light of the pandemic, the government has further sent out advisories by both the MHA and Labour departments. These advisories target this specific group of unprotected employees. At the same time, the government itself cannot do much in terms of interim protection, it has exhorted companies to refrain from sacking employees en-masse, and further to not exacerbate the situations that might cause employees to resign. The respective states have passed their own notifications mandating that employees shall be paid their wages as usual, and employers shall be proceeded against under the Disaster Management Act, if they indulge in large scale retrenchment. This comes from the fact that the notifications of the government after the lockdown had been instituted have all been issued in the strength of the Disaster Management Act. For that reason, this paper will consider conventional cases of termination of employment of contract-based employees, and answer the thesis from that perspective.

It is important to note that even though the primary reason why employees are being removed is the Coronavirus and ensuing lockdown, companies are not utilizing any new means and justifications to lay off the employees, it is still being done through the contractual limitations and provisions already made available and notified to both parties to the employment contract.

The government has made further provisions of the payment of wages to workmen and their termination among other things: These measures are welcome, and necessary respite in light of the possibility and potential of misuse of the contractual relationship that employers share with their employees. The reason why these measures have been taken is that employers have a far greater say and power in the negotiations for deciding the terms and conditions of the contract that is agreed upon between the parties at the time. This paper wants to explore the options the employer has in terms of his termination, and if at all, there are remedies that can be pursued.

The At-Will Theory of Employment

The fundamental principle of contract-based employment is the understanding that it is not contractual employment as defined in the Contract Workers Act. This paper only deals with the peculiar situation of employer/employee relationships that are pre-determined through a contractual agreement. In general, these contracts already contain the conditions of employment, and there is little left for speculation, this includes even the conditions for termination of employment. Most contracts, and interpretations of these contracts are constructed around the ‘at will’ theory of employment. This theory propagates that the employer is free to determine the role of the employee at will, and this has been used as a justification in situations where employees have been fired despite the lack of any apparent misgivings.

This ‘at will’ theory of interpretation of employment contracts is popular in India, albeit with some modifications to suit the overall policy of employment laws. In order to understand this ‘at will’ principle, let us look at the case ofDeMasse v ITT Corp.194 Ariz. 500in this case the company had additional rules of conduct guidelines in the employee handbook and when one of the employees sued the company for wrongful termination, the company referred to the employee handbook and argued that since some conditions of employer/ employee relationship cannot be pre-determined, it is necessary that the ‘at will’ principle should be extended to provisions that are determined after the conclusion of the original contract. This means that the employer has the absolute power to amend and modify the terms of employment (and therefore the termination) at any time during the pendency of the employment, provided that due notice has been given (this distinction was made in Gower v North Sound Bank957 P.2d 811 Wash. Ct. App.1998). In India, the treatment of employment is somewhat similar. Before moving on to understand the precedent of the contractual relationship between parties, one needs to bear in mind that during the current pandemic, the government has put out particular guidelines which mandate that wrongful and excessive firing is not permissible, and in the same notification, companies were instructed on the accruing penalties in the event of either terminating employment or making detrimental changes to the designation of the employee during the incidence of the pandemic. It is important to note that there is still no protection or standardized dispute resolution for employee disputes, neither is there a standard statute that employees can make claims under. The Shops and Commercial Establishments Act is the best point of reference to protecting the rights of private employees, most states have their personal Shops, and Commercial Establishments Act, the general understanding from perusing the different state-specific acts is that there is no limitation on the grounds for termination of employment, rather merely a limitation on the procedure. In most states, more likely than not, employees cannot be terminated without a 30-day notice if they have served more than 3 months, and if they served less, they are entitled merely to a 14-day notice. These acts make reference to wrongful termination in the context that the procedures such as payment of severance bond, due notice period (in Tamil Nadu and Karnataka there is no time specified for notice of termination, what is mentioned is just a reasonable notice period). These acts leave the grounds of termination up to the specific employer and in the event that such termination is based on a fundamental breach of contract, even that notice period is subject to waiver.

Precedent and Treatment of Employment Contracts by SC and High Courts

In this light, this paper wants to take a look at a few cases that demonstrate the relationship between a contract-based employee and his employer. The best example is the Neha Dhar v National Airways Company(2011) 1 Cal, Lt. 284 case, this was a blatant case of arbitrary termination. The petitioner, in this case, was fired from her position as air hostess because she was ‘overweight’ this was a matter of contention as the petitioner argues on the basis of Article 14 against discrimination on the basis for her physical condition. Upon examination, the court held that the employment contract that she signed at the time of joining required a minimum and maximum weight restriction. In that case, it was decided that despite the nature of the terms of employment, due to the mutual nature of an employment contract, these conditions once accepted by showing of assent by the employee couldn’t be reneged unilaterally by the employee.

A similar example can be seen in Ramneet Singh Chahal v Oracle Ltd.where the essential claim of the terminated employee was a request to reinstatement to its previous position upon establishing that his termination was motivated by illegal motes. The court on the strength of previous Supreme Court decision in S.K. Shetty v Bharat Nidhi Ltd. AIR 1958 SC 12stated that a claim of reinstatement was not statutorily provided for. The best remedy a private employee can hope for inaction against his employer is one for payment of back-dated-wages and a declaration that the termination is illegal in nature. To put in simpler terms, as held in Binny Ltd. And Ors v. Sadashivnan and Ors.(2005) 6 SCC 257The general principles of administrative laws do not apply to private employment, in that case, the determinate fact in issue was whether the employees would be workmen and in the event, they weren’t due to a recent change in designation, whether the same principles of industrial and administrative law applied to them. The main takeaway from this case is that the determinate factor inapplicability of the ‘at will’ principle depends more on the tasks fulfilled by the employee rather than the official designation.

Further, in the case of Shri Satya Narayan Garg v DCM Ltd. (2012) 127 Drj 216 It was held on the strength of mitigation of damages, and the manner in which the Supreme Court interpreted the case, employees cannot claim compensation for an indefinite period after their termination, and in situations where compensation for wrongful termination is claimed, the expectation is that an employee will seek out alternative employment in the meantime. This case is a reference for the quantum of compensation for a servant upon the termination of his services. The court held that the compensation should extend only to such limited period as the illegal termination has affected the employee.

A similar decision was rendered in the case of GE Transportation v Shri Tarun Bhargava(2012) 190 DLT 195, here the court held that since the employee wasn’t governed by the Industrial dispute act, and that the specific relief act didn’t provide for specific performance of a determinable contract, the agreed-upon period of one month’s notice shall validly terminate the employment and no compensation for the period that the petitioner was disabled from the performance.

Further in the discussion on grounds for termination, reference is made to Air India Corporation v VA Rebellow1972 AIR 1343where it was held that in order for an employment contract to be terminated, a lack of confidence in an employee is sufficient grounds. In this specific case, the company stated that since the petitioners’ job was to deal with the air hostesses and act in confidence, the aspect of confidence of the management in his capacity is important. Despite the arbitrary nature of this termination, it shall hold.

Employers and Covid-19 No

The Coronavirus outbreak has led to numerous problems in the country. The chain of demand and supply is disturbed not only in the country but across the world. Though work from is one of the thing, being suggested by most of the companies, there are sectors where work from is not feasible as it includes fieldwork, manufacturing units etc. Certain sectors are having a hard time opting for work from home culture. This includes the banking sector or any sector where data to be shared is highly confidential and needs to be protected.

All this is obvious to create a huge impact on the business and the job of the employees. Therefore, there arises a need to safeguard the interest of such employees so that they can feed themselves and their families, in these hard times.

Below are a few reasons that employers are listing while terminating an employee during the pandemic:

  • Lack of projects and work available to the employer himself.
  • No access to financial supports due to lack of work and lack of investors.
  • Work from home of remote work is not possible.
  • If an employer and employee have not been able to agree to alternative working arrangements.
  • Consistency of work has been lowered relatively.
  • “Frustration of contract’ grounds wherein the employer would be unable to determine with any certainty how they may be able to resume operations.
  • Inefficiency.
  • Violation of confidential provisions.
  • Breach of the employment contract.

Employees and Covid-19

The country has shifted to digitalization due to the sudden outbreak of Coronavirus in the country. It is hard to believe, but its been two months, that people are locked inside their houses and non-essential offices are shut. Most of the companies, employees have been asked to work from home so that that their work is not stopped, and income can be generated. The question which arises during this situation is that what are the rights of the employees under such circumstances?

Remedies available to the employees

For an employee who falls under the category of a ‘workman’, their conditions of service are governed by the Industrial Dispute Act, 1947 (‘Act’). Section 2A of the Act provides that dismissal of an individual workman will be deemed to be an industrial dispute.

  • The above dispute can be settled by way of adjudication or by conciliation, and in case the matter is settled by conciliation, the dispute comes to an end. In case the dispute is not settled, the dispute is referred to adjudication.
  • When an employee is terminated who is a non-workman, his terms and conditions of service are governed by the letter of appointment or employment contract, provided at the joining date, issued by the employer and the Indian Contract Act, 1872 and the State-Specific Shops and Establishment Legislations as well as the various orders that have been issued by various departments of central and state governments during the lockdown. A non-workman has the right to approach the civil court and/or the court designated under the Shops and Establishments legislation seeking payment of any unpaid dues and/or damages for wrongful termination if the termination was against the terms agreed by the employer.
  • During the nationwide lockdown, the companies can ask the employees to work from home, and for this, the employee would be entitled to full salaries.
  • Talking about the payments to employees, the government on March 21, 2020, issued a circular which provides that even if a work unit is non-functional due to the virus, the employers are entitled to consider the employees as working. The various state government has also issued notices that such employees should be paid.
  • The Maharashtra government also mentioned that no employer can deduct salaries or terminate the employee on the basis of this pandemic. It especially implies on the contract or casual workers.
  • The Ministry of home affairs issued a circular on March 29, 2020, which informed the state governments and ministries to ensure that the employers of all the industries, shops, companies, etc. pay full wages to the employees without any deductions, during the lockdown.
  • Employers cannot reduce the working hours, to get a reason to reduce the salaries of the employees to control the loss of the business. Moreover, the employers are not entitled to reduce the workforce to safeguard the business from the impact of Covid-19. Both such acts are prohibited by the notification issued by the Ministry of Home Affairs on 29th March 2020.
  • Employers should make sure that the working hours of the employees are not exceeded, then their actual working hours. Since there is no statute to govern the concept of work from home therefore general employment laws will be applicable.
  • However, these are mere guidelines and not enforceable in the court of law. The employee can send a formal notice to the company explaining the unfair dismissal, if the issue is not settled, then it can be taken to court.
  • The employee has the right to file a case against the employer for unfair dismissal in the Labour Court.
  • Furthermore, the principles of natural justice are still applicable to an employee (Delhi Transport Corpn. V DTC Mazdoor Sabha1991 AIE 101), which shall allow him to be heard and be given due representation during the termination process. Though even in this regard, most companies prohibit the presence of lawyers during the internal termination hearings. Terminated employees are also permitted to raise a claim in the absolute if due notice or time has not been provided to him to formulate a response and justification for the alleged wrongful conduct.

Conclusion

These cases are a sample of the many instances where private employees governing through a contract are able to exert absolute control over the termination of work of a private employee. The states had the option to legislate on the status of such employees when making their respective amendments to the state Shops and Commercial Establishment Acts. However, such changes were only made in the limited scope of procedure of termination rather than any governing principles for the substantial element thereof. One thing needs to be kept in mind, is that an employee has the absolute right to pursue a legal remedy in the instance of wrongful termination; and the employer is mandated through contract law to provide for a dispute resolution mechanism.

Despite all this, the pursuits of an employee wrongfully terminated fall short of reinstatement. As we have seen in precedent above discussed, employment contracts can determine the outcome of a claim made for wrongful employment, and since they are determinate contracts, an employee thus terminated has the capacity to initiate a proceeding in a forum of the mutual choosing, but will never be able to enjoy the full gamut of protection and remedy a workman is privy to.

Drafting of a Will

A Will or a testament is a legal document by which a person, who is known as the testator, expresses his wishes as to how his property is required to be distributed after his death. The testator also appoints one or more person, who is known as the executor, to manage the estate until its final distribution. A Will acts as a legal document which is used for transferring the property and other possessions of the testator after his death. The definition of the Will is mentioned under section 2 (h) of the Indian Succession Act 1925 which reads as follows: Will as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator should be at least 18 years of age and above. He must be of sound mind and must have testamentary capacity. In case if the Will is not written/typed in the testator’s handwriting, then he must sign the Will. Also, the Will is required to be attested by two witnesses who are not beneficiaries in such Will and who were present at the time when the testator has signed his Will. One of the vital things to be kept in mind for a valid will is the intention of the testator. Hence, all the wills that are executed are required to meet specific standards in order to be considered valid in the Court.

Essential elements of a Will

  1. Executor

    An executor is a person appointed by the testator but is not same as the administrator who is appointed by the Court. Where the Will talks about the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

  1. Probate

    Probate acts as the evidence of the appointment of the executor and unless and until revoked, is conclusive as to the power of the executor. However, the grant of the probate to the executor does not confer upon him any title to the property.

  1. Letter of Administration

    Letter of Administration is a certificate granted by the competent Court to an administrator. This letter is only given where there exists a will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not mention the name of the executor, then an application can be filed in the Court, for grant of letter of administration for the property.

  1. Attestation of Will

    The word ‘attesting’ means, signing a document to testify the signature of the executants. Therefore, an attesting witness signing before the executant who has put his mark on the Will, cannot be said to be a valid attestation. It necessary, that both the witnesses, must sign in the presence of the testator, but it is not essential, that even the testator needs to sign the Will in the presence of the witnesses. Further, it is not required that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the complete content of the Will.

Inclusions of the Will

To draft a Will, there are certain pre-requisite which needs to be adhered by the testator and the executor. For the drafting of a Will, the following points should be included:

  1. Details of the testator: All the details of the person who is making the Will should be included in the declaration. The name, age, address and all the other details which shall help in identifying who is making the Will and when it is being drawn.
  2. Declaration: It is mandatory for the testator to declare, that he/she is of sound mind and is under no coercion or influence while making of the Will.
  3. Details of the beneficiary: The details of the beneficiaries should be mentioned in the Will. Name, age, address of the one who will be benefiting out of the Will is essential while drafting a will.
  4. The executor of the Will: It is advisable to appoint an executor as he can ensure that the Will is carrying out in the way the testator wants or demands. The name, age, and address of the testator is mentioned as well.
  5. Details of property and assets: It is required that the testator lists out all the details of the asset and properties that a testator has, and also the ones that shall be included in the Will. He/she can also list out any specific assets that are there.
  6. Division of share: The share that each beneficiary will be allotted should be mentioned in the Will. It the asset is allotted to the minor, then the custodian for a minor should also be listed in the Will.
  7. Specific Directions: The testator is required to give directions in terms of executing the Will, and should specify if there are any other instructions.
  8. Witness: There should be a signature by the testator in the presence of at least two witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them.
  9. Signature: After the last statement is mentioned on the Will, the testator should sign with the date.
  10. Doctors Certificate: A Doctors Certificate (MBBS or MD) stating the person executing the WILL i.e, the testator is in a sound mind and health to execute his WILL.

Drafting of a Will

When a will is being drafted, it can go through various alterations, which are:

Revocability of a Will

According to Section 62 of the Indian Succession Act, a will is revocable or altered anytime, during the lifetime of the testator. Section 70 of the Indian Succession Act, further lays down how it can be revoked.

A mere and simple intention to revoke a will is not sufficient for a valid revocation. When a will has to be revoked, it should be given in writing and an expressed form. The revocation clause mentioned in the Will would revoke all the prior wills and codicils. When there is no express clause to the effect, then the former will becomes invalid to the extent of its inconsistency with the latest Will, known as an implied revocation. If there is no inconsistency between the two wills, then they cannot be considered as two separate wills. However, it is important that these, two wills are read together to indicate the testamentary intention of the testator.

The other way by which revocation can take place is when the revocation is made in writing, through declaring an intention to revoke and the writing must be signed by the testator with the two witnesses. The deed of the revocation is executed in the same way, how a will is executed.

To revoke a will, the testator may burn the Will, or by some other person in his presence and by his direction to revoke the same. The burning of the Will should be actual and not symbolic.

Therefore, a will may be revoked expressly by another will or codicil, by implied revocation, by some writing or by burning or tearing otherwise. It is important to know that cancellation of a will by drawing across lines is not a mode of revocation of a will. Under the Hindu Law, the Will is not revoked by marriage or by subsequent birth.

Alterations in Will

Section 71 of the Indian Succession Act applies to alterations only if they are made after the execution of the Will and not before it. Section 71 of the act provides that any interlineations or any obliteration or any other alteration made in the Will after its execution is null unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. When these alterations are executed, then they are read as the Will itself. However, if these requirements are not completed, then the alterations would be invalid and the probate will be issued not considering the alterations. The alteration has to be made in the Will itself and not in a separate paper. However, if the changes are such that which cannot be decoded or deciphered, then the Will would be considered destroyed to that extent.

Wordings of the Will

Section 74 of the Indian Succession Act allows the making of the Will in any form and in any language. There is no requirement for adding technical words in making of a will, but if technical words are used in the Will, they are assumed that they are used in their legal sense unless the context states otherwise. As long as the aim of the Will is clear, the technical words or accuracy in grammar is immaterial.

The construction that postpones the vesting of the legacy, in the property disposed of should be avoided. The intention of the Will should be decided after constructing the whole Will and not according to the individual clauses.

Execution of the Will

On the death of the testator, the executor of the Will or a legal heir of the testator can apply for probate in the Court. The Court will then ask other heirs if they any objections to the Will. If there are no objections in the Will, the Court then grants probate. A probate is a copy of Will, which is certified by the Court. It should be treated as conclusive evidence of the genuineness of the Will. It is only after this that a will comes into effect.

Signature of the Testator

As per the instructions of section 63(a) of the Indian Succession Act, the testator is required to sign or affix his mark. If the testator is not able to produce a sign, in that case, a thumb impression has been held legally valid.

Legal Pronouncements

In the case Gnanambal Ammal v. T. Raju Aiyar, the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole. The other principal applies is that, when two types of constructions are possible for the making of the Will, then the one who avoids intestacy and follows testacy should be followed.

The Court is required to follow the principle of clear intention. The primary duty of the Court is to determine the intention of the testator from the will itself by reading of the Will. The Supreme Court in Bhura Vs. Kashi Ram held that a construction which would advance the intention of the testator has been favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The Court should put itself in the shoes of the testator.

In another case of Navneet Lal v. Gokul & Ors, the Supreme Court stated that the Court should consider the testator’s relationships, the position of the testator’s families, the surrounding circumstances, and the probability, he would use words in a particular sense. However, it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interpret in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.

Conclusion

Drafting of a will is important as well as necessary in today’s time. It is no longer considered a taboo in India, and people are coming forward and drafting their wills so that in future, their assets and property can be easily divided into the beneficiaries. As these documents carry immense significance and importance, one should make sure, and these are drafted according to the laws enacted and with the help of a legal person so that no errors or mistakes are committed.

Criminal Medical Negligence in times of Covid-19

In India, the medical profession is considered one of the noblest and respectable in comparison to other such professions. Even in times of Covid-19, when everyone is locked inside their houses, it is the doctors who have taken charge and are providing the people with the right treatment and medicines. The people are sympathetic towards the doctors, as they are effortlessly and tirelessly working for the country at these trying times. To encourage the doctors, the government, as well as the general public, is arranging activities and gestures that help to motivate the doctors so that they can perform at their best.

The Prevailing situation

People equate doctors with the image of God. However, as every coin has two sides, these positive aspects have a profound negative impact as well. Similarly, due to the rising cases of Covid-19 in the country, the cases of Medical Negligence have also increased simultaneously, and this, in turn, is increasing the liabilities of the doctor in such difficult situations. Due to the outbreak of the virus, medical interaction has increased in the country, which is the root cause of the rise of medical negligence cases. The jurisprudence around criminal medical negligence is credited to the Supreme Court through three primary cases- Suresh Gupta, Jacob Mathew, and Dr. Praful Desai.

There are different types of negligent activities under IPC which a doctor may conduct. Under tortious negligence, a doctor may be asked to pay compensation and damages according to the loss of the patient, while under criminal negligence which is mentioned under section 304 of Indian Penal Code he may be awarded imprisonment or fine. There are three primary ingredients constituting negligence which are: (i) duty of care, (ii) breach of duty, (iii) subsequent injury. For a case to qualify as criminal negligence, there has to be either gross negligence or rashness endangering life. Culpable rashness is acting with the consciousness that mischievous and illegal consequences will follow, but with hope against it and the trust that the one doing the act has taken sufficient and enough precautions to prevent it. On the other hand, culpable negligence is acting without any consciousness that illegal and mischievous consequences may follow.

What is Criminal Negligence?

Every act done by a doctor cannot constitute to criminal liability. When a death occurs due to a simple misplaced judgment or because of an accident, then there is no criminal liability attached to it. Inadvertence to a degree of caution and care, which is not gross, only attracts civil liability. When the law talks about the standard care of a doctor, it means, the standard and expected care by the competent doctor according to his/her qualifications. A doctor cannot be held responsible for any negligence, until and unless he has followed the practise acceptable to the medical profession of that day. The doctor cannot be held liable if he had a better alternative or if a more skilled doctor would have chosen another part. The standard care refers to the sense of an ordinary man. This standard of care is as per the knowledge at the time of the incident and not when the trial is initiated. If a doctor has some special skill or competence, negligence is not measured as per the man, but as per the standard of an ordinarily skilled professional. Honest differences in opinions do not infer negligence. It is essential to differentiate between medical accidents, diffusion of responsibility and culpable conducts.

In times of Covid-19

Due to the increasing cases of Covid-19 in the country every day, the cases of criminal medical negligence cases are also on the rise. This is highly due to the lack of sufficient medical equipment, doctors per patient ratio, insufficient medical beds and also lack of availability of hospital staff due to the spread of Covid-19.

Another major reason for the rise in medical negligence cases is the treatment of Covide-19. As there is not a proper treatment protocol issued in treating covid-19 patients and bodies, there is an ambiguity in the treatment procedure. At times, while treating the patient to the best of his ability, the doctor may commit a mistake, this may be blamed as an instance of alleged medical negligence.

When a doctor, refuses a patient of a ventilator, or any other medical equipment which is necessary for the survival of the patient, he/she directly contributes to “Criminal Medical Negligence”. Apart from this, after the virus has taken a toll on the whole country, many doctors have stopped reporting to duty, in fear of the spread of the infection. There have also been cases reported, where the doctors or the hospital staff have deliberately refused to admit the patients even in critical situations which has to lead to many medical negligent cases and FIRs against such doctors for the same. Due to these negligent cases, many doctors have been suspended, and many doctors have also received notices from the Indian Medical Association. All these things, amidst the coronavirus and the lockdown, has contributed to more petitions by the patients in the supreme court against the doctors. The Supreme Court of India is only hearing urgent cases through video conferencing and other online modes, no judgments have been announced for such matters.

However, a negligent act is not just about being negligent to the patients; there have been various reported cases wherein the hospitals have issued notices to doctors for not showing up for treating patients. Hence, the doctors, amid this pandemic, need tobe careful in safeguarding their career.

Conclusion

It is important to note that, section 304 of the Indian Penal Code, does not talk about the word “gross”. The judiciary, with the development of jurisprudence on medical negligence, has attempted to balance wrong done to the patient against the autonomy of doctors. From the cases that have been heard by the courts, it has been established that, if doctors are held criminally for everything they do, then situations may arise where the doctor would be concerned about himself more than the patient. To avoid such circumstances, the courts believe in the evidence produced by the plaintiff. Covid-19 being a novel disease to the country at large, can be only controlled by the doctors, through their intellect, judgment and experience. Therefore, the way, these negligent cases would be handled at the courts would be different as this whole situation revolves around this pandemic. Cases which involve negligence by the hospital staff in providing with the ventilators, oxygen machines, may be easily solved. However, cases, involving not direct medical negligence would be a task for the Indian courts.

How does Covid-19 affect employers and employees?

In light of the recent relaxations of labour laws, in response to the coronavirus pandemic, the general impression might be created, and it is valid to have such an impression, that the government is cutting its losses, by relaxing labour laws and most governments are admitting that a lot of labourers already knew this to be the gospel truth: That the enforcement of labour laws has been next to impossible, and the recent automation based changes in inspection and evaluation procedure have made it harder for the respective state-level labour departments to keep a watchful eye.

Someone reading this needs to be well aware that there is a dichotomy between how these notifications seem to treat the labour force, and how the more immediate response to the pandemic has been to strengthen protection for the labour force. This is a trend one can see globally. In all sectors, in most countries, while the immediate response to the pandemic has been to protect and safeguard the workforce against any knee-jerk reactions, once the immediate panic and furore had died down, most jurisdictions have done the same, where the U.K had issued a new round of funding for the NHS in the beginning weeks of the pandemic.

Similarly, most companies that had voluntarily increased the pay of their essential workers in light of the heightened risk they face, have gone on to reduce the same, and even lay off a considerable chunk of these workers not even a month into the pandemic. This is the same pattern we see with India. It should come as no surprise that these new relaxations in labour laws follow a slew of notifications by the respective state and central governments requiring ever-stricter compliance with labour laws, and in general exhorting, employers to retain workers, and continue to pay them even during the pandemic.

Central Government

The central government has done its part in putting out advisory notifications in the last month. While it is noted that they are not enforceable, they are the foundation on which many states have based their own labour law gazette notifications. The first among them was issued on 20th March, and this was issued to all industries, Shops and Establishments. The notification provided that in the light of the pandemic, employers should be judicious with their terminations, and payment schemes. The notification simply says that since the labour force is already under a lot of stress, the additional burden of unemployment is something that can and should be avoided, especially during the pandemic.

This further extends to payment of wages, and  the government has instructed all departments, including government undertakings and affiliates, to pay all employees including those on sick leave, as if they were in active duty, the same has been extended to contracted, casual and outsourced employees. These measures are more focused on governmental protection and seem to have no application to the private sector. The advisory notifications have no applicability and are purely voluntary measures. It then falls on the states to ensure that the labour force is protected during and after the pandemic. During the pendency of these notifications, employers are not allowed to force employees into arrangements that might in some way allow them to avoid payment: such as forcing to take a furlough, forcing them to take their annual leave during the lockdown, cut salaries, place moratoriums on payment of benefits and bonuses. Again all of these are subject to enforceability and the readiness of companies to agree to them.

A more important notification is the one put out by the Ministry of Home Affairs. This in passing notes that all labourers need to be paid without interruption and, be paid to the full. This notification is more significant in terms of applicability since the same is backed by the sanction of the Disaster Management Act. The labour ministry has, in the meantime, established nodal offices and agencies that have been designated specifically to look into complaints and employment issues during the lockdown.

Loss of Jobs

In light of these notifications and the state’s half-hearted attempts at ensuring worker and employee safety and stability during this pandemic, circumvention has been smooth. Since the new notifications are being pushed by states to relax labour laws, companies have ramped up their efforts to cut down on losses, by either reducing salary, or by terminating employment contracts. This hasn’t been helped by the fact that the central government has put out a notification on the 29th March clarifying that a pandemic is a ForceMajeure event. This reduces the redressal options available to employees since any obligations broken due to act of god and consequences thereof are not answerable under contract law. Many major companies like Oyo, Goibibo etc that is on the smaller side of tech companies, have sacked employees in the thousands, even after these advisories have been put out, Bangalore has been the first city to feel the repercussions of the pandemic, the nation’s IT hub was the first city that saw layoffs during the lockdown, and after that, nearly all companies in major cities have issue d pink slips during the lockdown, in Pune, the labour ministry had to step in after a complaint was brought in against a company that fired about a hundred employees in the preceding month, even tech giants like Tech Mahindra was forced to cut salaries of lower level employees by 30% and lay of about 20% of their workforce in light of the financial crunch all companies are feeling, the insidious nature of this situation is that, since termination might be in direct violation and since termination needs the consent of the employee as well, companies have taken to creative measures such as locking pay, making employees take furloughs during the lockdown, altering their job titles to force resignation, among others to get rid of employees without falling afoul of the governmental advisory.

States, apart from the few, like U.P, that relaxed labour laws recently have taken much better stock of the situation. This paper will now look at some states, and the measures they have taken in light of the lockdown and financial crunch that came with it.

Maharashtra has out a notification dated March 31, mandating that no wage cuts shall be administered for homeless, migrant and foreign workers that have been stranded during the lockdown. Same has been done by the Telangana government, and in the notification dated March 24, the safety net has been extended to contract and casual labourers for the duration of the lockdown. In a similar vein, most states have drafted worker and labourer friendly notifications solidifying the intent in the advisories put out by the central government.

The paper believes that these measures taken by the state will not be enough since, on the other hand, states are relaxing regulations for employers while encouraging them to retain employees. The Andhra Pradesh government has relaxed inspection structures for the foreseeable future, and the Madhya Pradesh government has passed amendments to make hire and fire easy in the wake of the pandemic. The U.P government suspended all labour laws, except for the basic payment of wages, industrial disputes and ESI Act for the next three years. Gujarat, Himachal Pradesh, and as mentioned Madhya Pradesh have followed suit. This is indicative of a larger trend of other states following suit in taking similar decisions, either by passing ordinances like U.P or through an amendment like Madhya Pradesh.

Liability

The central government has set up nodal offices under notification to deal with labour issues: if an employee files a complaint, this will be a separate prosecution from labour court. Depending on what state the employer is from there might not be ant penalties: The central government notification from the department of labour is an advisory, not an order, hence unless respective states under the Disaster Management Act specify that employment retention needs to happen, no actual governmental penalty.

Despite all this, unless the employer is in UP, Gujarat, Himachal Pradesh, or Madhya Pradesh, where labour laws have been repealed, liability for wrongful termination of employees, legitimacy and viability of claim is debatable.

What one needs to keep in mind is that liability is state-specific, so one needs to be very mindful about the state labour ministry notification before terminating employees during the pandemic. After this is all over, since states are repealing labour laws, it might not be much of an issue.

Supreme Court Stand

The Supreme Court on Friday, 15th May 2020, stayed the operation of a Government circular directing all private enterprises to continue payment of full salaries for the duration of the lockdown.

The court also asked the Centre and states not to prosecute private firms, factories and others over the issue of non-payment till the next week. The Centre had sought a week to file its reply in the matter.

The petitioners warned that making such payments will lead to the closure of many of the units and which in turn will cause permanent unemployment and will adversely affect the employees and the economy.

The Petition further stated that an employer-employee have reciprocal promises whereby the right of an employee to demand salary is reciprocal and equivalent to the performance of work by such employee. Besides, the Petition stated that an employer has a right not to pay if no work is done.

The Petition even stated that crores of unclaimed provident fund and Employees State Insurance Corporation contribution lies in banks, and that could be used by the government rather than putting the burden entirely on the private sector.

Conclusion

Initially, most states had passed notifications protecting labourers, but due to the inherent limitations of the Labour law statutes, employees in the private sector do not come under these protections. These people only have the advisory notification of the central government to fall back on and no enforceable right except for a suit for arbitrary termination, which is no guarantee of protection of their livelihoods.

No protection has been given for those employees who are being forced to resign from their positions or are being forced to work for massively reduced salaries. The government has to keep up with the companies and employers and ensure that no lasting damage is caused to the labour market in the country solely because there was no statutory response to sections of the population that need protection. If this was not enough, the government might be looking to relaxing the labour laws applicable to protected groups in the aftermath of the pandemic, to cushion against the coming economic recession, thus removing any safety net that was provided to them during the lockdown.

Rent deference during the Pandemic

The Coronavirus pandemic has prompted the nation to its most jarring standstill in a long time, and most governments and companies are still figuring out different ways to deal with the sudden halt of global supply chains. The lockdown has slowed down markets, factory operations and several businesses, affecting employment and source of income of many.

Rental Agreements

Rental agreements in India are the most common types of agreements as India being one of the most populated countries, does not have enough resources and utilities per capita. People here work by renting places, and most of the outstation employees, workers and students who come to work and study also prefer to stay in a rented flat. It is important and always advisable that property-related deals shall be secured through legally binding agreements on the parties involved. It does not matter that whether you are an owner who is looking out to rent his property or a tenant who is looking for a property on rent, the important thing is that both the parties involved shall make use of a valid rent agreement format inclusive of all the clauses that shall be beneficial to both the parties and at its best shall protect the interest of both the parties. The agreement should work as a reference document for the parties involved. The rent agreement should be made keeping in mind all the legalities and legislation so that it is an error-free agreement and can be presented as collaborative evidence in the scenario when a dispute arises among the parties.

These agreements are simple contracts which are legally enforceable in the court of law and is therefore made under the Indian Contracts Act, 1872. Any rental agreement which is made in keeping the mind, the essentials of a valid contract, is considered as a valid rental agreement.

Rental agreements are right now the centre of attraction, as its position in the time of Covid-19 is highly unstable. There are circumstances, under which, an individual is not using a place, but is still liable to pay the rent as per the agreements. Though there have been schemes and offers by the Indian government, still the relaxation policy for such agreements is unclear.

Government Policies on Economic Relief to Affected Parties

A majority of the Indian middle class lives in rented accommodation, and so do many migrants, students, out of station employees etc. and for all of them, not having enough savings left to meet their utilities and needs is a stark and immediate reality. In that light, the central government, along with a few state governments, that have cities with sizeable migrant, and floating populations have put in place regulations to help the middle class in need of financial respite.

This paper talks about one specific aspect of the measures governments have taken to aid people financially; rent control. Since rent is a purely a contractual obligation between parties to the agreement, it is rarely infringed upon.

In understanding the provisions of rent deference, it is essential first to understand the importance of the Force Majeure Clause. A Force Majeure Event can be understood as an extraordinary event or a circumstance beyond human control, which frees both the parties from contractual obligations, when prevented by such an event, from fulfilling their obligations under the contract. Force Majeure Clause is a standard clause which is invariably incorporated in every agreement. It also entitles legally to suspend and or not to perform an undertaking by a party. Unfortunately, most of the Force Majeure clauses in already concluded agreements do not have a pandemic like an event incorporated in it. An event in order to be stated to be a Force Majeure event must contain, among other things, the following:

  • directly or by implication be an event which is beyond the reasonable control of any of the parties; and
  • must affect the ability to perform by any of the parties.

The central government and the respective state governments have drafted these orders and notifications, relaxing the rent payment requirements under their jurisdiction. It needs to be kept in mind that not all states have taken measures in this vein since no other form of financial relief except loan payment has been mandated in the act.

Rent Deference

The central government in consonance with their policies for migrant labourers and workers stranded has mandated that no landlord shall collect rent for the next few months due to the pandemic. Other measures, including arranging special trains for transit have been arranged but for the sake of this paper, the notification dated 29th March is the sole focus since it relaxes rent collection obligations and places the same under the purview of Sec, 57 of the Disaster Management Act, mandating a year of imprisonment or fine.

Around the same time, the state governments of Karnataka and NCT Delhi have announced a similar measure, with the notable difference being the scope of application of the notification. In both these states, the notification extends protection to all tenants and halts payment of rent for at least one month in Delhi and a similar length of time in Karnataka. These notifications do not signify whether they will be deferring the payments, or requiring landlords to forgo the rent for the one-month period commencing on the day of the issuance of the notification. This lack of clarity be as it may, the NCT Delhi government has, through an advisory announced that they would be providing assistance to those residents that are unable to meet their rent obligations. While there is no official notification signifying the same, it can be assumed that the same will be carried out as a local level scheme.

While the Delhi and central government notifications have made provisions for action in the event of a violation of the same, the Maharashtra government notification, which wasn’t properly available on the website, and whose only public domain copy was a twitter post, where a Marathi language copy of the order was found, makes no such mention. This notification is more explicit about the aim, where the time period of non-recovery is three months, the notification clearly states that the scheme merely provides for deferment of rent payment, rather than forgiveness; allowing landlords to recover three months of rent at the end of the notification period.

These measures have no bearing on the rental contracts and do not derail the status of sub-letters, most of that is to be extrapolated from the barebones construction of the notification. In sum, these notifications apply to all landlords that, at the time of publication are letting out a property in rent and to the best of my knowledge (except for Maharashtra where it is specified) defer the payment of rent.

There are other ways through which the rent is reduced or waived off in these hard times. One of the ways is by directly convincing the owner of the property for some concession in the monthly payments of the rent till the nationwide lockdown is over. This is an unofficial method, and it entirely depends upon the decision of the owner whether he wants to give the concession to the tenant or not. There yet no official notice from the government which allows concession to such agreements. It is vital to note that such arrangements are being used by the students, outstation employees, etc. Also, such policies only apply to those agreements that have been executed before the nationwide lockdown, that is, before 25th March.

The parties may execute an Addendum with the help of a legal entity or try to negotiate and put in writing and execute the Addendum. The strict requirement of compulsory registration of such pandemic time Addendums or novation of contracts, during these hard times, must be dispensed with by the governments so that there is no unnecessary hassle.

Changes in legal System post Covid-19

Once the lockdown is over, and things become normal, one of the most prominent change, that the legal system will witness shall be the making of the legal enforceable agreements. People will not consider the importance of making a contract and will execute such contracts with utmost diligence. The clauses like “force majeure” and “doctrine of frustration” will be considered essential, and would be taken into consideration in future contracts.

A “force majeure” clause when present in a contract, gives the opportunity to not perform legal obligations under some circumstances. Such scenarios could be when an activity becomes impossible to perform. If a rental agreement, contains this clause, there are high possibilities that the rent is waived or reduced of the tenant, as due to the lockdown staying in the rented flats have become an impossible activity. However, such clauses are not added in the rental agreements. Therefore, the layman will make sure that such a clause is given a place in the agreement.

The covid-19 lockdown has also made people aware of the clause of “doctrine of frustration”. This clause frustrates the tenancy even when either party involved in the agreement is not at fault, and the legal obligations, become impossible to fulfil due to the unforeseeable circumstances. Tenancy, as the main element of the contract, will terminate automatically, when a frustrating event occurs that is one which is unforeseeable and unexpected or beyond the control of the parties. Section 56 of the Indian Contract Act, 1872 deals with “doctrine of frustration”. Here again, the important point is the presence of such a clause in the valid rental agreement.

Services of trained mediators and conciliators and organizations that provide additional dispute resolution may be used by the parties, in order to conclude issue rising due to these rental agreements in the time of the lockdown.

Therefore, if we talk about the changes in the legal system, drafting of the rental contracts would see a new world with much more important clauses.

Conclusion

Post Covid-19 there are significant changes that the country would witness. Similarly, the rental agreements will have to go through their own changes. The agreements would amend not only with the addition of newer clauses but also the way through which the rents are paid. The rent in the future might be paid through instalments etc. However, it is important to understand that the basic structure of a rental agreement would not change. It might go under some amendments, but its validity and the way they are made shall remain the same. It is advisable that once the things become normal, execution of such agreements shall be only made with the help of an experienced legal person to reduce such ambiguity in the future outcomes of the agreement.

Legal issues in the practice of Telemedicine

Telemedicine means the remote diagnosis and treatment of the patients by the means of telecommunications technology. Multiple technologies can be used for delivering telemedicine consultation. There are three primary modes. They are Audio, Video and Text (chat, messaging, email, fax etc.). Telemedicine is also referred as e-health or telehealth. It is a perfect combination of modern-day information technology and medicine. Telemedicine reduces the costs on time, expenditure and cuts travel of long distances for consultation and treatment in cases where there is no necessity for physical access, follow-up consultations, etc.Only the registered medical practitioners are entitled to practice telemedicine. A Registered Medical Practitioner is a person who is enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act 1956. Earlier, there was no statutory framework on the practice of telemedicine, through video, phone or any other Internet-based platforms.

Digital technologies also referred as the telemedicine in Indian healthcare are certainly witnessing huge adoption due to the lockdown imposed to reduce the spread of the coronavirus disease Covid-19. Therefore, it has become need of the hour to know the legal rights and obligations of the doctor, when they provide their services through online means.

Legal Issues

There are legal risks which are associated with the new developments of Telemedicine. Following are some of the legal issues which might arise in Telemedicine practice:

  • Litigation for medical negligence

There is a high risk of litigation for medical negligence which could take place in future due to the Telemedicine practice. In the cases of medical negligence, there are two basic requirements which must be fulfilled. The doctor-patient relationship must exist, and the doctor must have breached his professional duty of care towards his patient.

  • Doctor-patient relationship

There must be a contract either express or implied between the doctor and the patient in order to establish that there was adoctor-patient relationship between them. However, in telemedicine, it is not clear for determining whether the doctor-patient relationship exists online or through an email.In case if the interaction takes place between the doctor and patient at the time of emergency situation where the doctor was forced to treat the patient, then it will be considered that there was no doctor-patient relationship existed.

Hence, there are certain provisions mentioned under the Information Technology (IT) Act 2000 which will apply to the Telemedicine practice. For Instance, Section 4 & 5 of the said IT Act has given legal recognition to the electronic record and digital signatures. The IT Act has also amended the Indian Evidence Act 1872 in order to make the electronic record admissible in the Court as evidence.

  • No standard degree of care

In the traditional medical profession method, the standards required for a reasonable degree of care and skill by the doctors was laid down by the Supreme Court under the case of Poonam Verma V/s Ashwin Patel. However, telemedicine being a new concept, does not have the same standards of care as laid down.The standards of a reasonable degree of care and skill are not mentioned/determined for the doctors practicingtelemedicine as there has been no case of medical negligence brought against such a doctor.

  • Liability of Doctors

In case if a doctor practicingtelemedicine fails to respond to the patient’s request for medical attention and the patient suffers injury then it is possible that a doctor-patient relationship would be deemed to exist and the doctor would be held liable. Yet in another scenario, if a doctor is on vacation and the patient believes that he will receive a timely response and suffers an injury because the doctor fails to respond. In the above circumstances, it is not clear that whether the doctor has any responsibility to respond in regard to the patient’s treatment or to notify the patient that he cannot assist them for any reason.  In case of errors which takes place due to a breakdown in communication or organization during the telemedicine application, then the primary principles of organizational responsibility will possibly apply.

  • An issue relating to Security

There is another legal issue relating to the security of the patient’s information in telemedicine practice. The legislation for telemedicine practice must protect the privacy of the patient, authenticate the information, authorize, and maintain integrity. Hence, the security policy would help in making the telemedicine practice more efficient, risk-free and reliable.

Case law

Deepa Sanjeev Pawaskar and Another V/s State of Maharashtra

Bombay High Court - 2018 judgment on Telemedicine Practice Guidelines

Criminal Anticipatory Bail Application No - 513/2018

In this case, the patient was suffering from fever and severe vomiting. She was admitted to the nursing home of the doctors (who were accused) by the hospital staff without examination as the doctors were out of town. One of the doctors started treatment of the patient telephonically, by instructing on-duty nurse. The Bombay High Court held that the patient died because she was prescribed treatment over the telephone without an appropriate diagnosis. The Court also found that such an act amounts to criminal negligence.The Court rejected the bail application of the doctors. The doctors were not arrested as they were successful in receiving the bail-in appeal. Hence, many doctors interpreting the judgment deeming telemedicine illegal. However, the High Court was only concerned with the fact that there was a failure on the part of the doctor to diagnose the patient, and it does not interfere with the Telemedicine guidelines. The fact that the treatment of the patient was done through the telephone is only incidental to the conclusion of the judgement.

Conclusion

Earlier, as there was no appropriate framework that existed for the telemedicine practice, the Bombay High Court had created uncertainty about the place and legitimacy of telemedicine in its 2018 judgment.Hence, there has been a legal concern on the practice of telemedicine as there is a lack of clear guidelines which has created significant ambiguity for registered medical professionals in India.The existing Indian Law does not adequately address concerns relating to Health Information. It isessential to first understand the specific problems of the Indian patients and Healthcare provider with regards to the telemedicine practice before framing legislation that addresses their legal issues relating to it.Telemedicine practice will change the medical industry in India. However, a lot depends on how telemedicine practice is regulated in India and how a doctorpracticingtelemedicine incurs liability in the cases of medical negligence.

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