Decriminalization of Section 377: Reality or Facade?

On September 6, 2018, a historic judgment was made by the Supreme Court of India which decriminalized Section 377 of Indian Penal Code. Supreme Court ruled that consensual adult gay sex is not a crime. The verdict included the members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender Queer) community. The LGBTQ community has always been considered as a taboo in the society. The verdict originated a sense of inclusiveness among those members.

Before this verdict, the vast majority of the LGBTQ Indians remained to live double lives, putting on a false front to be heterosexual because of the immense fear of confronting prejudice or impairment and discrimination.

Decriminalization of the severe and mouldy section 377 of Indian Penal Code has marked an end of an era where this brutal law will no longer be able to violate human rights of a certain kind and to foster and facilitate an atmosphere in which millions of people have faced discrimination because of their sexual orientation or gender identity.

Section 377 reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be Read More

How To File A Consumer Complaint In India?

Not all sellers are reliable in today’s market, a few sellers if not all, rely on unfair trade practices to sell fake or inferior quality goods to their customers in order to save costs and increase their profit. The Consumer Protection Act, 1986 was enacted to protect the interests of the consumers and also to provide legal remedies to consumers who feel that they have been forced upon with defective and faulty goods/ services.

Who Can File A Consumer Complaint?

As per section 2 (1) (d) of the Consumer Protection Act, 1986 , A consumer is a person who buys goods or services for consideration which may be partly or fully paid or partly or fully promised or any other person who may consume goods with the approval of buyer and not for manufacturing or resale purpose.

In simple words following are the people who can file a complaint:

1. Anyone who paid fully or partially for the Read More

Importance of Founders’ Agreement in a Start-up

When looking for a team for start-up, young entrepreneurs generally turn towards trusted friends, colleagues or family members. There is an inherent trust in the relationship that the other person will bring in his expertise and work towards the growth of the new venture. Such arrangements are usually agreed verbally among the founders without any formal documentation. Irrespective of the type of business entity proposed to be incorporated (limitedpartnership or a company), proceeding without a formal founders’ agreement is the single biggest mistake entrepreneurs can commit before commencing their business operations. Imagine a number of situations that can arise. What will be the role and responsibilities of the respective founder? How will the equity of the company be divided? Who will own the intellectual property rights (IPR) of the company? If there are more than one founder (which is often the case), then what kinds of rights and obligations to be shared between the founders? What happens in next round of financing? What if there is a disagreement on a major business decision? Whose decision will prevail? How will this disagreement reflect before the investors when requesting them for funds? What happens if one of the founders leave? Such issues are bound to come up as the startup progresses and one cannot expect to resolve such deadlocks over a cup of coffee based on previous verbal understandings. It is pertinent to understand that even if your co-founder is your best friend, differences will arise in course of time and if nothing is done to address them, the startup will most likely take the fall.

Co-founders’ Agreement to the Rescue

The best solution to avoid abovementioned issues is to have a co-founders’ agreement in place since the very inception. Co-Founders’ agreement is a formal written agreement amongst the co-founders pertaining to several key issues about running the business. It helps to prevent and settle disputes resulting from differences amongst founders. It clearly lays down the roles and responsibilities of the respective founders and establishes a robust system of management and dispute avoidance and settlement. Such an agreement should be put in place before incorporating any new venture. It should be drafted in such a manner that there is no scope for ambiguity. It offers an opportunity to the founders involved in the startup to have honest conversations about their goals and aspirations so that later on, as the startup grows, there are no conflicts, both professional and personal.

Apart from ensuring smooth functioning of the business, the co-founders’ agreement also serves as an important document for the investors to understand the inter se roles and responsibilities of the founders. It indicates the governance model of the startup and plays a vital role in creating an impression on the investors.

Important Clauses

The contents of the co-founders’ agreement are based on understanding arrived by the founders. However, certain standard clauses are a must in such agreements.

• Defining the Business: It is important to define the vision and mission of the business and what targets it seeks to achieve over a period of time.
• Nature and type of business entity: The co-founder’s agreement should clearly describe the nature and type of business entity the founders are willing to incorporate. While deciding the same, the founders shall keep in mind their long term and short-term goals with respect to the business.
• Assigning Roles and Responsibilities: If all the founders have same or overlapping roles in the business, there is bound to be chaos. Therefore, it is important to assign clear roles and responsibilities to each founder depending on their area of expertise. For example, roles can be divided into operations, marketing, finance and so on. If each founder knows what is expected of him, he will be more efficient. Clear demarcation of roles also develops a system of accountability where would be easier to identify the specific responsibility for a particular task that is supposed to be performed by a particular founder
• Ownership Structure: The founders’ agreement should clearly describe the structure of ownership of the startup. This includes the percentage or number of equity shares held by each founder in case of a company or the percentage of initial contribution committed to be infused by each founder. It can be based on the particular founder’s involvement in the startup or the amount of capital invested by him. It is important to be clear about this provision in the initial stage itself to avoid any potential future conflicts among the founders.

• Transfer of Shares: It is important to lay down some restrictions on transfer of shares by founders. There can be concept of a lock-in period of certain years during which the founders cannot transfer their shares to any third party. This provision should clarify what happens if a founder transfers his shares before the lock-in period ends. It should also address whether a founder can transfer his shares to third parties. Provisions such as right of first refusal can be incorporated to give preference to the existing founders in transfer of shares. In case a founder leaves the company, the agreement should spell out how his shares will be treated- can he continue to hold the shares or will the company buy back his shares and at what value? The procedure for issuing new shares should also be laid down. All these issues should be discussed and put down in the agreement before commencing business to avoid unnecessary conflicts later on. A classic example is that of Facebook. During the initial stages when Facebook required funding and was trying to attract investors, Mark Zuckerberg diluted the equity shareholding of one of its co-founder’s, Eduardo Saverin. This led to a bitter lawsuit, which is depicted in the movie The Social Network. Though the case was eventually settled, Saverin got 5% equity in the company, which he continues to hold.
• Decisions: An important tool of resolving conflicts is to establish a decision-making procedure. For example, if a voting system is adopted, it should be clarified if all the votes will carry equal weight. What happens in case of a deadlock? Will any of the founders have a casting vote? In such a situation, can an external member be called upon to resolve the deadlock? There can be business decisions that may not warrant decision-making through voting. Situations such as these have to be envisaged at the initial stage. Should an actual eventuality arise, there will be a set mechanism in place to guide the founders.
• Compensation: The agreement should clearly lay down the scheme of compensation- which founder should get how much and how will the amount be determined?
• Assignment of IPR: IP can add a boost to the valuation of a company and is a very valuable asset. As a startup grows, it creates intellectual property, which should be protected. IPRs should be assigned to the company and not to any individual. This holds for the founders as well the employees of the company. If the company engages the services of a third party to create an IP, the founders should ensure that the IPRs vest with the company.
• Removal of a Founder: This clause lists the circumstances under which a founder can be removed from the company. Some of the grounds include sexual harassment, misappropriation of funds and taking up alternate employment. It should also be made clear as to what happens to the ownership and other interests in case a founder is removed.

• Non-compete: It should be agreed beforehand that while part of the company, a founder shall not engage in activities that are in conflict with the company. In case a founder decides to exit the company, he shall not engage in a competitive business for a certain number of years after his exit. In order for this provision to be effective, it is important to distinctly define the business in the initial clauses of the agreement.

• Confidentiality: Including a confidentiality clause in the co-founders’ agreement places an obligation on the founders to protect sensitive business information. Therefore, it should be drafted deftly to include any such information that the company seeks to protect.

• Dispute Settlement: This clause prescribes the mode of settlement of disputes, in case one arises between the founders. Doing so ensures that a large amount of time is not lost in settling the dispute if the parties cannot decide on the agreed mode of resolution. Generally, arbitration is preferred due to its various advantages over litigation.

Besides avoiding conflicts between founders, a co-founders’ agreement serves as an important instrument for the investors to gauge the management of the company before they invest in it. In the absence of such an agreement, an investor may not be very keen to put his money in a startup which does not have a formal system of management agreed to by its founders. Thus, a co-founders’ agreement also tells the investors that the startup has a robust governance system capable of dealing with issues that it may face at a later stage. All these points that have been discussed make it imperative for the founders to have a formal, written co-founders’ agreement before they approach investors for funding their startup.

Alternative Dispute Resolution

Background

The common phrase we hear is “Justice delayed is justice denied’’. It is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all . India is a large democracy and the faith of the people in the judicial system is strong and vital, as people believe in Rule of law and consider justice to be given in a timely and profound manner.

As per the recent statistics of National Judicial data grid, around 8172260 civil cases are pending in the country without considering the criminal cases and if we look at the total pendency of cases, the number is around 27928667 . The courts are understaffed and pressure on the judicial system is very high.

Depending on the court and the case, it can even take upto 10 years or more for a Court to pronounce judgement at the level of the trial court let alone the time taken at the Appellate levels. A reform is the need of the hour to ease the burden of the courts and look for other alternatives to redress grievances and early adjudication of cases especially in the field of commercial disputes. One of the ways to ease the burden of courts in commercial matters is through Alternative Dispute Resolution. Alternative Dispute Resolution or ADR is a fine substitute for common judicial process. ADR includes methods like Arbitration, Conciliation, Mediation. All of them have some common features.

Introduction: ARBITRATION

It is one of the mechanisms to resolve the dispute between two or more parties/entities under the adjudication of an unbiased, impartial and independent person(s) appointed by the parties to the dispute. This mechanism is known as Arbitration. The legislation governing Arbitration is the Arbitration and Conciliation Act, 1996 (as amended by the Amendment Act of 2015).

Arbitration is usually the preferred mode of dispute resolution for civil disputes in the real estate sector, construction sector, basic contractual disputes, investment disputes, in the field of insurance etc. The speedy redressal of cases and early award and justice to the people who have subjected themselves to arbitration make it a viable option for resolving disputes. Arbitration led to a major change in adjudication of civil/commercial disputes. It provides a platform to the parties to resolve disputes in a timely manner which assists the parties to avoid lengthy litigation through courts. Arbitration helps to ease the burden of courts to some extent and with recent developments, it has become more transparent and effective.

ADVANTAGES OF ARBITRATION

Customized Procedure and Privacy
Arbitration provides absolute freedom and power to the parties to customize the process to be followed during the adjudication process. For instance, the parties can agree to waiving any oral evidence and may agree that adjudication of the dispute may only be done based upon documentary evidence. The parties have the right to determine the number of arbitrators. Arbitration is a private procedure, whereby privacy regarding the dispute, the procedure followed and the eventual outcome is maintained unless either party challenges the decision of the Arbitral Tribunal before a Court of Law. However, to choose arbitration as the preferred mode of dispute resolution, the parties should incorporate an Arbitration clause in this regard in the Agreement they execute by and between themselves.

Avoid Lengthy Litigation and Cost
Arbitration helps in avoiding the lengthy procedural delays which are a norm in courts and saves a significant time to allow the parties to reach a conclusion. Further, the process of arbitration allows the costs to be managed in a manner suitable to the parties and in the end the party in whose favour the Award is passed, is also entitled to costs of the Arbitration. It can be said without a doubt that sometimes arbitration proceedings also become a place for amicable resolution of disputes as parties sometimes under the guidance of the Arbitral Tribunal explore the possibility of arriving at an amicable settlement thereby saving on eventual costs of dispute resolution.

Awards – Finality and Challenge
Award is basically a decision made by arbitral tribunal on the matter referred to it. It is the final judgement made by the arbitral tribunal, and is binding in same manner as a decision of court. With the recent amendments to the Arbitration law of the country, the procedure to challenge an Award before a Court of Law has become extremely difficult. It has been held through various judgments of the Supreme Court that an Award can only be challenged if it strictly falls under the ambit and scope of the grounds for challenge enunciated under the Arbitration and Conciliation Act. Hence, it is perceived that if the Arbitral Tribunal has passed an Award on merits which does not suffer from any irregularity the same will be upheld even by the Court of Law and will not be interfered with. Thus, reposing faith in the sanctity of the procedure of arbitration as also the conclusion after the adjudication process which comes in the form of an Award.

Early Settlement of Dispute
The process of arbitration has become a time – bound procedure courtesy the amendment to the law. The arbitration proceedings are mandatorily required to be concluded within a period of 12 months from the date of initiation of the procedure. Though, the timeline could be extended by another 6 months by consent of parties, yet, the procedure is much faster than adjudication through court. Also, as stated above, since the Courts have minimised their intervention in the Awards passed by Arbitral Tribunals, hence, even if the Award is challenged by a Party; the said challenge is dismissed clearing the path for quick and efficient execution of the Award.

How to Protect Intellectual Property – Strategy for Startups

Introduction

Intellectual property protection should be one of the foremost concerns of a nascently set up entity, particularly a startup.

Intellectual property refers to innovative creations arising out of one’s or a team’s intellectual exercise. It includes not only innovative products and processes but also logos and images. Some key intellectual property rights are:

1. a) Patents:Inventions involving both innovative products and processes which contribute to technological development and simplify everyday lives are called patents. A patent-holder has the exclusive right to use or license his patented product or process.
2. b)Copyright:Ideas cannot be copyrighted, but if these ideas are articulated in a permanent form then the creator may be entitled to a copyright over his/her work. Copyright generally exists over books, films, music etc.
3. c) Trademark:A trademark is a distinctive sign or symbol used by companies to enable the consumers to identify their goods. Logos of companies are trademarks.

IP rights and their protection is essential for companies. Especially, a startup which is just starting out requires its reputation to be built over years and its ideas to be protected in order to gain competitive advantage over its rivals.

In this article, we discuss and lay down an ideal IP protection strategy that may be adopted by startups.

What needs to be protected??

An entity ideally needs to protect the following components of its IP:

1. a) Trade secrets/confidential information: Trade secrets are information essential and valuable to the business being run. It may include documents such as sales charts, product specifications or any other information which may give the company a competitive edge over its rivals. The first step towards efficient protection of trade secrets is to have a strong contractual clause built in all the contracts being / to be executed by the entity, including employment contracts which impose strong confidentiality obligations. A separate confidentiality and non-disclosure agreement may also be entered into with business partners, customers and employees.
2. b) Patent protection:Being new in the industry, startup enterprises need to devise a strategy which gives them an edge over the extant market players.

The following steps may be kept in mind while devising a strategy for the protection of patents:

Ø Filing an application for patents needs to be done immediately after the product or process is ready.

Ø The product or process for which the patent is being filed should not be published or disclosed.

Ø The application may be filed with a provisional specification as well. However, complete specification needs to be filed within 12 months of the filing.

Ø Patents are territorial in nature. Hence, filing for patents in multiple jurisdictions simultaneously may help the startup in gaining competitive advantage.

1. c) Trademarks:Trademarks create a company’s brand. For instance, google is known and identified by its logo. It is important for companies to protect their logos and trademarks. The first step towards an efficient trademark protection should be to register the trademarks. A registered trademark enjoys a higher protection than an unregistered trademark. An infringement suit can be filed only for the violation of a registered trademark.

What should an ideal IP Strategy encompass

While strategy of each start-up may differ according to the services rendered or the products marketed by them, certain issues run central to all efficient IP strategies.

While formulating an IP strategy, the following things need to be kept in mind:

Ø An IP strategy must include a training policy wherein the employees, customers and partners of the company are made aware of the various kinds of IP the company owns and the importance of maintaining confidentiality and protection of these rights.

Ø Commitment towards respecting and protecting other companies’ IP rights should also form part of an IP strategy.

Ø As part of the IP strategy, standard contractual templates of agreements such as non-disclosure and confidentiality agreements/software licensing agreements etc. should be formulated.

Ø It would not serve the company’s purpose to patent all products/processes they come up with. There may be certain products which do not require to be subjected to the lengthy process of being patented. Clear guidelines as to what would be required to be patented and the requisites for a patent should be clearly laid down in the IP strategy.

Ø Assignment of intellectual property by the employees is an essential ingredient of framing an IP strategy. As part of this, all employee contracts should have a clause wherein they assign irrevocably and perpetually all the intellectual property they create in the course of their employment to the company.

Ø Budget allocations for the protection and development of IP should also be outlined in the IP strategy.

Ø It is preferable to have a dedicated team consisting of legal and business strategists to handle any issues arising out of IP protection.

Ø Before devising an IP strategy and protection mechanism for all the IP the company owns, one must think which of these IP is essential for the growth of the company. Time and resources should be selectively expended on only such intellectual property.

Ø It is crucial to mine one’s IP correctly in order to monetize it. One way may be to license out IPs which the company does not use in exchange for a fee. For instance, developing software and licensing it out to different companies may be a good way to mine and monetize your IP.

Ø The IP strategy should also include mechanism to protect against cyber threats. A strong cyber security practice should be in place.

Ø Exit strategies should be pre-determined. If the product being marketed goes out of use, then it is better to surrender the IP and exit the market. Typically, for short-lived products, it is advisable not to invest in obtaining the IP.

Conclusion

Intellectual property is the backbone of a startup. Most startups are founded on some innovative product or service. If such products or processes are not protected, then the entire business plan of a startup may fail.

It is, thus, imperative that a proper IP strategy be drawn up in order to systematically protect the IP. It is a more arduous task for nascent companies as they generally do not have huge resources. Yet, with the right strategy and implementation, a sound IP protection framework may be achieved.

 

 

 

How to sue an Employer

 

HOW TO SUE AN EMPLOYER

INTRODUCTION:

Under the employer-employee relationship, it is the employer who is in a superior position. Many times, this superior position is exploited and the employees are subject to discrimination, verbal abuse and even they are not paid with their hard-earned wages. On the grounds of such unpaid wages, discrimination and oral abuse legal action can be brought against the employers.

UNPAID WAGES

One of the primary reason for which anyone to be in any job is to earn living and if wages or salary is not paid then it really becomes difficult for anyone to continue with the job. On to this, it is also the moral obligation but also the legal obligation of any employer towards the employee to pay the same.

As per Section 3(1) of the Payment of Wages Act, 1936, “every employer has a responsibility to provide wages or salary to the employee employed under him.” So, whenever employer-employee forms a contract, employees are entitled to get a salary for their work and if it is not paid, the employers can be sued for such non-payment. This is because under the law of contracts when parties sign any contract under free consent, it becomes binding on them to abide by it. And on failure to do so, the contracting parties may bring an action against each other.

Therefore, the following acts are the grounds on which the employers can be sued for non-payment of wages and salary:

• Deduction not mentioned in the contract of employment
• The employee does not agree to such a deduction
• Deduction as against the law
• Any unauthorized deduction of salary by the employer like:-

• • Deduction of salary as punishment.
  • Delay in payment of salary when the employer is on the verge of being insolvent or bankrupt.
  • Employer terminates an employee without clearing salary dues.

Provisions available as against unpaid wages are as follows:

Remedies for such non-payment are provided under different acts such as the Payment of Wages Act, 1932; Industrial Dispute Act, 1047; Labour Court and Labour Tribunal; The Companies Act, 2013.

• Payment of Wages Act, 1932– Here suit can be filed u/s 15 of the Act for the recovery of unlawful deduction. The section provides the procedure for such claims as well as the penalty for mala fide

• Industrial Dispute Act, 1947- Here suit is filed u/s 33C of the Act for recovery of arrear salary. Salary can be claimed by the employee himself or the authorized person and on the employees’ death, the same can be claimed by the authorized person or his/her heirs by filing an application before the labour Then the principle of natural justice is to be followed where the parties to the suit are allowed to be heard and lay down their defence. The Court on being satisfied with such due, issues a certificate. Further, the collector can proceed for the recovery of such arrear.

U/s 4 of the Act, a complaint can also be filed before the conciliation officer for the recovery of such unpaid salary and the officer appointed under this section shall act as a mediator. If the dispute gets settled between the parties, a report along with a memorandum has to be sent to the appropriate government which needs to be signed by the parties to the dispute. If the settlement is not reached, then also a report has to be prepared and sent to the appropriate government stating the reason for the same. The case can also be forwarded to the Labour Court and Labour Tribunal for adjudication within 30 days if the appropriate government thinks fit. The Tribunal has all the powers of a Civil Court provided under the Code of Civil Procedure, 1908.

• The Companies Act, 2013– Sec 447 of the Act can be invoked when the delay in the payment is affected due to employers’ involvement in the fraudulent act.[1] The section lays down punishment for fraud, i.e., imprisonment for a minimum period of 6 months which may extend to 10 years and a fine equivalent to the amount of fraud or three times the amount of fraud. Here, the remedy can also be claimed under Indian Penal Code.

DISCRIMINATION

In any workplace, people of diverse culture, religion, caste, sex, language, place of origin, gender, disability etc., will be found.[2] There have been several instances where the victims of racial discrimination at the workplace have opened up. Such victims have a right to bring a legal action. Discrimination can be on one ground or on multiple grounds.[3]

Therefore, the following acts are the grounds on which the employers can be sued for discrimination at the workplace:

• Non-payment of equal remuneration to equally competent or qualified employee[4]
• Denial of certain benefit to a particular employee[5]
• Discrimination while granting leave and promotion.[6]
• Exclusion of potential employees from work,[7]
• Discrimination on the ground of marital status, political opinion, etc.[8]
• Discrimination on the ground of disabilities like “blindness, low vision, leprosy-cured, Hearing impairment, locomotor disability, mental retardation and mental illness”.[9]
• Maternity Leave.

Provisions available as against discrimination are as follows:

• Constitution of India- The Indian Constitution has a different provision like Art. 14, 15 and 16 which promotes equality before law; prohibits discrimination on the grounds of religion, race, caste, sex and place of birth and empowers the “state to make reservations with respect to an appointment for posts in favour of backward classes of citizens if in the opinion of state such classes are under-privileged respectively”[10]. However, rights can only be claimed against the State as defined under Art. 12 of the Constitution of India. Further, under Article 39 of the Constitution, “all men and women are urged to have equal right to have an adequate means of livelihood, right to shelter, food, education, and work”[11].

• Equal Remuneration Act, 1976- Here discrimination issues on the basis of recruitment, wages, work-transfer, and promotion are covered. For Ex: Equal remuneration shall be paid to both men and women for same work or same nature of work.

• Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; National Trust for Welfare of Persons with Autism, Cerebral, Palsy, Mental Retardation and Mental Disability Act, 1999 and Rehabilitation Council of India Act, 1992; The Right of Persons with Disability, Act, 2016- The 1995 Act was passed to provide equal opportunities like education, social security, employment and unbiased atmosphere for the disabled people. For Ex: u/s 47 of the Act, if any government employee suffers from any disability during the course of employment his should not be reduced but should be employed in a different capacity. The former two Acts deals provide protection with specified disabilities. The 2016 Act states that there should not be any discrimination in disabled government employees.[12]

• Industrial Employment Standing Orders Act, 1946– Here, employees are required to be provided with proper redressal mechanism against discrimination.

• Industrial Dispute Act, 1947– It also prohibits discrimination against workers. For Ex.: discrimination against workers as they are members of some trade unions.

• Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013-This legislation is an outcome the Supreme Court’s decision in Vishakha v. the State of Rajasthan. The Act confers an obligation on the employer to provide measures for the prevention of sexual harassment at workplace and also for the mechanism for such dispute resolution.

• Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017– The Act prohibits dismissal of women for the reasons of maternity leave.

The process to bring a lawsuit against the employer for discrimination is as follows:[13]

• Talk to the employer – a victim of discrimination should converse with the employer about the discrimination and try to resolve the issue. Further, the matter should also be discussed with the HR and if it does not work then a formal complaint procedure should be followed.
• Assemble evidence– a record of all evidence, if possible with date and time which in your opinion were discriminatory and violation of your right should be maintained. The same should also be discussed with the HR.
• Talk to Co-employees and HR- The victim should then converse with the Co-employees seeking their support and also talk with the HR to understand the Company’s policy and your contract with the Company.
• Potential claims- The victim should go through various kinds of discrimination and decide the kind of discrimination (s)he has been put through. This needs to be done as the elements of such discrimination has to be proved.
• File complain with EEOC (Equal Employment Opportunity Commission) or other state agency– they look and investigate into the matter, and then decide whether to policy should be changed or you should get damages.
• Filing of Civil Suit– If the victims think fit can also file the civil suit against the offender.

VERBAL ABUSE

When an employee is often addressed with negative and abusive language infront of the entire office. For ex: you are mocked in-front of everyone that makes you really uncomfortable and this amounts to verbal bullying.[14] However, the Nagpur Bench of Bombay High Court has held that “the verbal abuse does not attract punishment not to be in public place inorder to attract”.[15]

Provisions under which employees can be sued for Verbal Abuse are as follows:

Cases against verbal abuse can be brought under of Indian Penal Code. The sections are:[16]

Sec 506– here the proceedings can be brought up against criminal intimidation of which the imprisonment may extend to a period of two years with or without fine or both.

Sec 509 – here, if the words or acts of the employer reaches to the extent that it insult the modesty of women then proceeding can be brought under this section and the punishment here is simple imprisonment which may extend for a period of one year, with or without fine or both.

 

CONCLUSION

Presence of above-mentioned laws and provisions under which the employer can be sued actually ensures the employee’s right to work with dignity at the workplace. However, to get the maximum benefit from the provisions a competent and experienced advocate must be hired as these cases are quite difficult to prove before the Court of law. Even, before going for the litigation process one should think multiple times as the litigation process not involves huge expenditure but also a long time. In many cases, the employees are also terminated from the job and it becomes really hard for them to get another job.

[1] Sudip Ghosh, What to do if employer donot pay salary, ipleaders, (Dec. 15, 2016), https://blog.ipleaders.in/what-to-do-if-employer-does-not-pay-salary/.

[2] Sheetal Sharma, How to report instances of racial discrimination, ipleaders, (Feb. 19, 2018), https://blog.ipleaders.in/report-instances-racial-discrimination/.

[3] Anubhav Pandey, Types of Discrimination in workplace and their legal protection in India, ipleaders, (Oct. 21, 2014), https://blog.ipleaders.in/types-of-discrimination-in-workplace-and-their-legal-protection-in-india/.

[4] Ritika Das, All you need to know about workplace discrimination laws in India, ipleaders, (Mar. 04, 2017), https://blog.ipleaders.in/need-know-workplace-discrimination-laws-india/.

[5] Sheetal Sharma, supra, 3.

[6] Sheetal Sharma, supra, 3.

[7] Sheetal Sharma, supra, 3.

[8] Ritika Das, supras, 5.

[9] Such disabilities are mentioned in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 made it compulsory for all government establishment to reserve not less than six percent of vacancies arising against all posts and in promotion of all persons with disabilities.

[10] Article, 16 of the Constitution of India.

[11] Article 39 of the Constitution of India.

[12] Anshul Prakash & Parag Bhide, Legal HR: Workplace Discrimination- Laws and Resource for employees, People matters, (Jan. 09, 2018), https://www.peoplematters.in/article/legal-and-compliance-outsourcing/legal-hr-workplace-discrimination-laws-and-recourse-for-employees-17201?utm_source=peoplematters&utm_medium=interstitial&utm_campaign=learnings-of-the-day.

[13] Hoe to sue an employer for discrimination, Legal Match, https://www.legalmatch.com/law-library/article/how-to-sue-for-discrimination.html.

[14] Mumbai Mirror, 10 Signs that you’re being bullied at work, Times of India, (Aug. 4, 2016, 12:06 IST), https://timesofindia.indiatimes.com/life-style/relationships/work/10-signs-that-youre-being-bullied-at-work/articleshow/47231041.cms

[15] Hindustantimes, ‘Verbal abuse need not to be inpublic place to attract punishment, (Jul.12, 2018), https://www.hindustantimes.com/mumbai/verbal-abuse-need-not-be-in-public-place-to-attract-punishment/story-y0zycQr9cTDpBrtDUN03bM.html.

[16] What are the laws against foul language and indecent verbal abuse in India, Quora, (Aug. 04, 2015), https://www.quora.com/What-are-the-laws-against-foul-language-and-indecent-verbal-abuse-in-India.

 

 

The Journey Begins

Thanks for joining me!

Good company in a journey makes the way seem shorter. — Izaak Walton