Legal Aspects in Healthcare 378 v1

Legal Aspects In Healthcare
Sub Code 378
Developed by
Dr. Pravin Kumar Agrawal
MBBBS, M.S. (OPHTHL)
MBA HOSPITAL ADMINISTRATION; PGDHHM,
PGDMLS
On behalf of
Prin. L.N. Welingkar Institute of Management Development & Research
!  
Advisory Board
Chairman
Prof. Dr. V.S. Prasad
Former Director (NAAC)
Former Vice-Chancellor
(Dr. B.R. Ambedkar Open University)
Board Members
1. Prof. Dr. Uday Salunkhe  2. Dr. B.P. Sabale  3. Prof. Dr. Vijay Khole  4. Prof. Anuradha Deshmukh 
Group Director  Chancellor, D.Y. Patil University, Former Vice-Chancellor  Former Director 
Welingkar Institute of Navi Mumbai  (Mumbai University) (YCMOU)
Management Ex Vice-Chancellor (YCMOU)
Program Design and Advisory Team
Prof. B.N. Chatterjee Mr. Manish Pitke

Dean – Marketing Faculty – Travel and Tourism
Welingkar Institute of Management, Mumbai Management Consultant
Prof. Kanu Doshi Prof. B.N. Chatterjee

Dean – Finance Dean – Marketing
Welingkar Institute of Management, Mumbai Welingkar Institute of Management, Mumbai
Prof. Dr. V.H. Iyer Mr. Smitesh Bhosale

Dean – Management Development Programs Faculty – Media and Advertising
Welingkar Institute of Management, Mumbai Founder of EVALUENZ
Prof. B.N. Chatterjee Prof. Vineel Bhurke

Dean – Marketing Faculty – Rural Management
Prof. Venkat lyer Dr. Pravin Kumar Agrawal

Director – Intraspect Development Faculty – Healthcare Management
Manager Medical – Air India Ltd.
Prof. Dr. Pradeep Pendse Mrs. Margaret Vas

Dean – IT/Business Design Faculty – Hospitality
Welingkar Institute of Management, Mumbai Former Manager-Catering Services – Air India Ltd.
Prof. Sandeep Kelkar Mr. Anuj Pandey

Faculty – IT Publisher
Welingkar Institute of Management, Mumbai Management Books Publishing, Mumbai
Prof. Dr. Swapna Pradhan Course Editor

Faculty – Retail Prof. Dr. P.S. Rao
Welingkar Institute of Management, Mumbai Dean – Quality Systems
Welingkar Institute of Management, Mumbai
Prof. Bijoy B. Bhattacharyya Prof. B.N. Chatterjee

Dean – Banking Dean – Marketing
Mr. P.M. Bendre Course Coordinators

Faculty – Operations Prof. Dr. Rajesh Aparnath
Former Quality Chief – Bosch Ltd. Head – PGDM (HB)
Welingkar Institute of Management, Mumbai
Mr. Ajay Prabhu Ms. Kirti Sampat

Faculty – International Business Assistant Manager – PGDM (HB)
Corporate Consultant Welingkar Institute of Management, Mumbai
Mr. A.S. Pillai Mr. Kishor Tamhankar

Faculty – Services Excellence Manager (Diploma Division)
Ex Senior V.P. (Sify) Welingkar Institute of Management, Mumbai
COPYRIGHT © by Prin. L.N. Welingkar Institute of Management Development & Research.

Printed and Published on behalf of Prin. L.N. Welingkar Institute of Management Development & Research, L.N. Road, Matunga (CR), Mumbai - 400 019.
 
ALL RIGHTS RESERVED. No part of this work covered by the copyright here on may be reproduced or used in any form or by any means – graphic,
electronic or mechanical, including photocopying, recording, taping, web distribution or information storage and retrieval systems – without the written
permission of the publisher.
NOT FOR SALE. FOR PRIVATE CIRCULATION ONLY.
1st Edition Jan 2015

Contents
Chapter No. Chapter Name Page No.
1 Introduction to Medico legal issue and ethical Issue 4-90

in health care administration
2 Laws pertaining to health 91-111

3 Laws pertaining to Hospitals 112-202
4 Medico legal Issues 203-293
5 Laws pertaining to Drugs 294-310
6 Labour Laws applicable to health care institutions - 311-367
Part 'A'
7 Labour laws applicable to Health care Institutions - 368-402

Part 'B'
8 Labor laws applicable to Health care Institutions - 403-477

Part 'C'
9 Consumer Protection Act, 1986 478-491

10 Right to Information Act , Environmental Act, 492-510
Pollution Acts
! !3
INTRODUCTION TO MEDICO LEGAL ISSUE AND ETHICAL ISSUE IN HEALTH CARE
ADMINISTRATION
Chapter 1
Introduction to Medico Legal Issue and
ethical issue in Health Care administration
1.0 Introduction to Medico legal issue and ethical Issue in health
care administration
1.1 Indian Constitution

1.1.1 Reference to health under fundamental rights
1.1.2 Health under the directive principles
1.1.3 Animal health, plant health and environment health
1.1.4 Health in the Indian federal set-up
1.1.5 Health and the state list
1.2 Indian Penal Code

1.2.1 Objective
1.2.2 Structure
1.2.3 Reforms
1.2.4 Words & Phrases
1.2.5 Decriminalization of Suicide Attempts
1.2.6 Criminal Justice Reforms
1.3 Civil and criminal procedures

1.3.1 Difference between civil & criminal procedures
1.3.2 Civil Procedure
1.3.3 Criminal procedures
1.4 Indian Evidence Act

1.4.1 Introduction
1.4.2 The Act
1.4.3 Applicability
1.4.3 Contents
1.4.4 Indian Evidence Act Classic Classification
1.4.5 Classification of Evidence Act in Four Questions
! !4
ADMINISTRATION
1.5 Police Act
1.5.1 Contents
1.5.2 Preamble
1.5.3 Interpretation clause
1.5.4 Death in Custody
1.5.5 Encounter killing by police
1.5.6 Agencies involved to surfacing police custodial deaths
1.5.7 Forensic aspect of police custodial deaths
1.6 Judicial system in India

1.6.1 Introduction
1.6.2 Courts
1.6.2.1 Supreme Court of India
1.6.2.2 High courts
1.6.2.3 District courts
1.6.2.4 Village Courts
1.6.3 Issues
1.6.3.1 Judicial Backlog
1.6.3.2 Judicial corruption
1.6.4 Reforms
1.7 Regulation of different professional bodies in India

1.7.1 Medical Council of India
1.7.2 Dental Council of India
1.7.3 Pharmacy Council of India
1.7.4 Indian Nursing Council
1.7.5 Central Council of Homeopathy
1.7.6 Central Council of Indian medicine (Ayurveda / Siddha / Unani )
1.7.7 Bar Council of India
1.8 Basic legal terminologies and Jurisprudence
1.9 Professional Conduct, Etiquette and Ethics Regulations, 2002 and

amendments 
! !5
ADMINISTRATION
1.1 THE CONSTITUTION OF INDIA
TheConstitutionofIndiawhichwasadoptedbytheConstituentAssemblyonthe26t
hNovember 1949, came into force on the 26th January 1950. It is said that
the Indian Constitution is the longest and most detailed Constitution in the
world, the original Constitution containing as many as 395 articles and 8
schedules touching upon different aspects of socio-economic, political and
other aspects of life of the people. Even though health, as a sector, does
not appear in many places of the Indian Constitution, there are indirect and
tacit references to health of the people and the role the state has to play in
the development of health of the people. Under the term Social Justice,
one can bring in the question of access to health care facilities and the
principle of justice involved in the equality of access to these facilities.
1.1.1 Reference to health under fundamental rights:
• Provision No. 16, under the Fundamental Rights refers to equality of

opportunity for all citizens in matters relating to employment or
appointment to any state-run health care institutions.
• Clause No.19 u/s 'Right to Freedom' refers to the right of the citizens to
practice any profession or to carry on any occupation, trade or business
Thus, in the case of the eligible citizens, there is no restriction on the
practice of medical profession to carry on the occupation in any part of
the country.
• The chapter on Fundamental Rights refers to the Right against

Exploitation under Article 24. It is said that no child below the age of 14
years shall be employed to work in any factory or minor or in any other
hazardous employment. 
! !6
ADMINISTRATION
1.1.2 Health under the directive principles:
• Under Part IV of the Constitution of India, outlining the Directive

Principles of State Policy, there are a number of tacit references to the
health development of the people. For example, it is said that the state
shall, in particular, direct its policy towards securing "that the citizens,
men and women equally have the right to an adequate means of
livelihood, that the health and strength of workers, men and women and
the tender age of children are not abused and that citizens are not forced
by economic necessity to enter the avocations unsuited to their age or
strength.
• Clause No.41 under the PART IV OF Constitution of India, Direct its states
agencies as follows " The state shall, within the limits of its economic
capacity and development make effective provision for securing the right
to work, to education and to public assistance in cases of unemployment,
old age sickness and disablement and in other cases of un-deserved
want.
• Clause No.42, under the PART IV OF Constitution of India, Direct its

states agencies to provide for just and human conditions of work and
maternity relief. This implies that it is not simply the sickness or
disablement which requires the state to intervene but it is also under the
normal situations of work and the normal experiences of the citizens
under certain circumstances that the state should provide the needed
assistance. This may take the form of financial assistance for anti-natal
and post-natal care and providing the facilities for such care.
• Under Clause No.47 in the chapter on Directive Principles, it is said that

the state shall record the raising of the level of nutrition and standard of
living of its people and the improvement of public health as one of its
primary duties. 
! !7
ADMINISTRATION
1.1.3 Animal health, plant health and environment health:
• TheConstitutionalsoreferstothepreservationandimprovementofhealthyenvi
ronment which is so crucial for the improvement of health status of all
living beings. For example, under the Clause No.48 of the chapter on
Directive Principles of State Policy, there is a reference to the
organization of agriculture and animal husbandry and also improvement
of environment and safeguarding of forest and wild life.
• Clause No.51A of the section on Fundamental Duties states that every

citizen of India has the duty to protect and improve the natural
environment including forests, lakes, rivers and wild life and to have
compassion for living creatures.
1.1.4 Health in the Indian federal set-up:
The seventh schedule of the Indian Constitution mentions responsibilities

which are indicated under the Union List, State List and the Concurrent
List.
THE UNION LIST: Court quarantines including hospitals connected

therewith, seamen and marine hospitals are legitimately put under the
Union List implying the responsibilities of the Union Government towards
this function. The following items related to the health services and health
status of the people is also put under the Union List. These items are
considered under ClauseNo.58, 59, 81 and 84. They are reproduced below:
58.Manufacture, supply and distribution of salt by Union agencies;

regulation and control of manufacture, supply an distribution of salt by
other agencies.
59.Cultivation, manufacture, and sale for export of opium.
81.81.Inter-state migration; Inter-State quarantine
84.Duties of excise on tobacco and other goods manufactured or produced

in India except-
a. Alcoholic liquors for human Consumption;
! !8
ADMINISTRATION
b. Opium, Indian hemp and other narcotic drugs and narcotics but
including medical and toilet preparations containing alcohol or any
substance included in Sub- paragraph (b) of this entry.
1.1.5 Health and the state list:
• Under the State List, there are direct references to the provisions of
health Care facilities. For example, Clause No.6 under the State List
refers to public health and sanitation, hospitals and dispensaries.
• Clause No.7 refers to the pilgrimages within India in which case, the
provision of health care facilities comes under the state responsibilities.
• Clause No.8 refers to the intoxicating liquors, the production,

manufacture, possession, transport, purchase and sale etc. of which will
have to be overseen by the State Government in the federal framework.
• ClauseNo.10 refers to the burials and burial grounds, cremation and

cremation grounds, proper maintenance of which is very crucial for
human and animal health.
• Protection of the plants against pests and prevention of plant diseases is

considered as State Government's responsibility under Clause No. 14 of
the State List.
• The entire subject of water is put in Clause no. 17 under the State List.
Similarly, fisheries-promotion and fish breeds, protection of the fish from
diseases is also kept under the state responsibilities.
! !9
ADMINISTRATION
Concurrent list:
The following items are included under a Concurrent List - List III of the
Indian Constitution. These clauses are reproduced below:
3. Preventing detention for reasons connected with the security of the

State, the maintenance of public order, or the maintenance of supplies
and services essential to the community; persons subjected to such
detention.
5. Marriage and divorce; infants and minors; adoption; wills, intestacy and
succession; joint family and partition; all matters in respect of which
parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law.
16.Lunacy and mental deficiency, including places for the reception or

Treatment of lunatics and mental deficient.
18.Adulteration of foodstuffs and other goods.
19.Drugs and poisons, subject to the provisions of entry 59 of List with

respect to opium.
91.(20A). Population control and family Planning.
24.Invalidity and old age pensions and Maternity benefits.
92.(25). Medical education and their affiliated universities, Subject to the

provisions of entries 63, 64,65 and 66 of List I; vocational And technical
training of labor.
25.Medical and other professions.
28.Charities and charitable institutions.
29.Prevention of the extension from one State to another of infectious or

contagious diseases or pets affecting men, animals or plants.
30.Vital statistics including registration of births and deaths.
! !10
ADMINISTRATION
33.Trade and commerce in, and the production, supply and distribution of
foodstuffs, including edible oil seeds and oils.
1.2 INDIAN PENAL CODE (IPC)
Indian Penal Code (IPC) is the main criminal code of India. It is a

comprehensive code intended to cover all substantive aspects of criminal
law. The code was drafted in 1860 on the recommendations of first law
commission of India established in 1834 under the Charter Act of 1833
under the Chairmanship of Thomas Babington Macaulay .It came into force
in British India during the early British Raj period in 1862. However, it did
not apply automatically in the Princely states, which had their own courts
and legal systems until the 1940s. The Code has since been amended
several times and is now supplemented by other criminal provisions. Based
on IPC, Jammu and Kashmir has enacted a separate code known as Ranbir
Penal Code (RPC). The Ranbir Penal Code applicable in that state of Jammu
and Kashmir of India, is also based on this Code.
1.2.1 Objective
The objective of this Act is to provide a general penal code for India. The
Code does not contain all the offences and it was possible that some
offences might have still been left out of the Code, which were not
intended to be exempted from penal consequences.
1.2.2 Structure
The Indian Penal Code of 1860, sub-divided into twenty three chapters,
comprises five hundred and eleven sections. The Code starts with an
introduction, provides explanations and exceptions used in it, and covers a
wide range of offences. The Outline is presented in the following table: 
! !11
ADMINISTRATION
INDIAN PENAL CODE, 1860 (Sections 1 to 511)
Chapter Sections covered Classification of offences
Chapter I Sections 1 to 5 Introduction
Chapter II Sections 6 to 52 General Explanations
Chapter III Sections 53 to 75 of Punishments
Chapter IV Sections 76 to 106 General Exceptions of the Right of Private

Defense (Sections 96 to 106)
Chapter V Sections 107 to 120 Of Abetment
Chapter VA Sections 120A to Criminal Conspiracy

120B
Chapter VI Sections 121 to 130 Of Offences against the State
Chapter VII Sections 131 to 140 Of Offences relating to the Army, Navy and
Air Force
Chapter VIII Sections 141 to 160 Of Offences against the Public Tranquillity
Chapter IX Sections 161 to 171 Of Offences by or relating to Public

Servants
Chapter IXA Sections 171A to Of Offences Relating to Elections

171I
Chapter X Sections 172 to 190 Of Contempts of Lawful Authority of Public

Servants
Chapter XI Sections 191 to 229 Of False Evidence and Offences against

Public Justice
Chapter XII Sections 230 to 263 Of Offences relating to coin and

Government Stamps
Chapter XIII Sections 264 to 267 Of Offences relating to Weight and

Measures
Chapter XIV Section s 268 to Of Offences affecting the Public Health,

294 Safety, Convenience, Decency and Morals.
Chapter XV Sections 295 to 298 Of Offences relating to Religion
! !12
ADMINISTRATION
Of Offences affecting the Human Body.
• Of Offences Affecting Life including

murder, culpable homicide (Sections 299
to 311)
• Of the Causing of Miscarriage, of Injuries
to Unborn Children, of the Exposure of
Infants, and of the Con cealment of Births
(Sections 312 to 318)
Chapter XVI Sections 299 to 377 • Of Hurt (Sections 319 to 338)
• Of Wrongful Restraint and Wrongful
Connement (Sections 339 to 348)
• Of Criminal Force and Assault
• Of Kidnapping , Abduction , Slavery and
Forced Labour (Sections 359 to 374)
• Sexual Offences including rape (Sections
375 to 376)
• Of Unnatural Offences (Section 377)
Of Offences Against Property
• Of Theft (Sections 378 to 382)

• Of Extortion (Sections 383 to 389)
• Of Robbery and Dacoity (Sections 390 to
400)
• Of Criminal Misappropriation of Property
Chapter • Of Criminal Breach of Trust (Sections 405
Sections 378 to 462
XVII to 409)
• Of the Receiving of Stolen Property
• Of Cheating (Section 415 to 420)
• Of Fraudulent Deeds and Disposition of
Property (Sections 421 to 424)
• Of Mischief (Sections 425 to 440)
• Of Criminal Trespass (Sections 441 to
462)
! !13
ADMINISTRATION
Of Offences relating to Documents and
Property Marks
Chapter
Sections 463 to 489 • Of Property and Other Marks (Sections
XVIII
478 to 489)
• Of Currency Notes and Bank Notes
(Sections 489A to 489E)
Chapter XIX Sections 490 to 492 Of the Criminal Breach of Contracts of

Service
Chapter XX Sections 493 to 498 Of Offences Relating to Marriage
Chapter XXA Sections 498A Of Cruelty by Husband or Relatives of

Husband
Chapter XXI Sections 499 to 502 Of Defamation
Chapter Sections 503 to 510 Of Criminal intimidation, Insult and

XXII Annoyance
Chapter Section 511 Of Attempts to Commit Offences

XXIII
1.2.3 Reforms
Section 377
• Section 377 had been interpreted to suppress the rights of sexual

minorities in India. This section has been termed as the biggest hurdle in
dealing with control of AIDS in the country. But the Delhi High Court on 2
July 2009 gave a liberal interpretation to this section and laid down that
this section can not be used to punish an act of consensual sexual
intercourse between two adult males. This was incorrectly termed by
many people including reputed media houses as amendment of this
section which it was not.
• Section 377- Gay Sex is Crime: Delhi High Court judgment Date of
Judgment- 19.08.2009- 2009 [3] [Journal of Criminal Cases] JCC Page
No. 1787. In The High Court of Delhi-Hon’ble Chief Justice Ajit Prakash
Shah, Hon’ble Dr. Justice S.Murlidhar.
! !14
ADMINISTRATION
1.2.4 Words & Phrases
• Adult-Everyone 18 years of age or more.
• Consent-Persons below 18 years would be presumed not to be able to

consent to a sexual act.
• Carnal Intercourse-is used in Section 377, and distinct from expression

"sexual intercourse" in Sections 375 & 497.
• Carnal-To do with the flesh or body.
• Gay Community-Men who have sex with men [MSM], homosexuals.
• Unnatural-not according to nature; for example, according to nature the

orifice of the mouth is not meant for sexual/carnal intercourse.
• Unnatural Offence-Unnatural sexual acts has no rational nexus to the

classification created between procreative and non-procreative sexual
acts.
1.2.5. Decriminalization of Suicide Attempts
• Section 309 meets out punishment for an unsuccessful attempt to

suicide. In September 2011, Government of India indicated that it is
considering to amend this section and to decriminalize suicide attempts.
The Government was responding to a PIL filed in the Supreme Court.
1.2.6. Criminal Justice Reforms

In 2003, the Malimath Committee submitted its report recommending
several far-reaching penal reforms including separation of investigation and
prosecution (similar to the CPS in the UK) to streamline criminal justice
system. The essence of the report was a perceived need for shift from an
adversarial to an inquisitorial criminal justice system, based on the
Continental European systems.
! !15
ADMINISTRATION
1.3 CIVIL & CRIMINAL PROCEDURES
1.3.1 Difference between civil & criminal procedures
• Civil procedure applies to the process where two parties bring a case to
the court for a decision on a particular matter. These matters can include
• divorces,
• estate distribution,
• injury cases, or
• even matters such as discrimination in the workplace.
Where as
• Criminal procedure applies to the process where the state or federal

government is arresting and trying someone for a crime that was
committed.
1.3.2 Civil Procedure
• Civil procedure dictates that a civil case must begin with filing a
complaint.
• The complaint is served to the offending party who then drafts and files
an answer with the court.
• Anyone can be a party to a civil case including people, businesses, and

government entities.
• When parties go before the court in a civil case, it is to determine

whether a person was injured and how much they should be
compensated for that injury.
• All of this information is specifically drafted into the documents.
• Civil cases still have some Constitutional protection in place
! !16
ADMINISTRATION
• During discovery, the parties are free to investigate each other’s property
and information in order to gain access to necessary evidence for their
case
• The key idea to abstract from civil procedure is efficiency
• The rules of civil procedure are designed to make the process efficient
and smooth and prevent long trials where they are not needed. This is
possible because the only thing at stake for the defendant is money.
1.3.3. Criminal procedures
• Criminal procedure is designed to safeguard the Constitutional rights of

people being investigated, accused, and tried of crimes.
• A criminal investigation begins with a crime happening.
• The police determine suspects and start questioning people. In order to

question anyone or go into anyone's home, the police must obtain a
warrant from a judge.
• If a warrant is not pursued, then the evidence and anything else that was
found as the result of that piece of evidence are all thrown out
• If the accused person cannot afford an attorney, criminal procedure

requires that one is given to them through the public defender's office.
• Even after a criminal case is over and the accused person sentenced,
they are permitted to appeal their case as high as necessary if there is a
mistake
• The key ideal to abstract from criminal procedure is Constitutional

protection.
• the rules of criminal procedure are designed to protect an accused

person's Constitutional rights and prevent the government from
wrongfully or unfairly accusing and prosecuting someone of a crime.
! !17
ADMINISTRATION
1.4 THE INDIAN EVIDENCE ACT
1.4.1. Introduction
• originally passed by the Imperial Legislative Council in 1872, during the

British Raj, contains a set of rules and allied issues governing
admissibility of evidence in the Indian courts of law
• The Indian Evidence Act and introduced a standard set of law applicable
to all Indians.
• The law is mainly based upon the firm work by Sir James Fitzjames
Stephen, who could be called the founding father of this comprehensive
piece of legislation
1.4.2 The Act
The Indian Evidence Act, identified as Act no. 1 of 1872, and called the
Indian Evidence Act, 1872, has eleven chapters and 167 sections, and
came into force 1 September 1872
1.4.3 Applicability
When India gained independence on 15 August 1947, the Act continued to

be in force throughout the Republic of India and Pakistan, except the state
of Jammu and Kashmir. It also applies to all judicial proceedings in the
court, including the court martial. However, it does not apply on affidavits
and arbitration.
1.4.3 Contents
This Act is divided into three parts and there are 11 chapters in total under
this Act.
Part 1
Part 1 deals with relevancy of the facts. There are two chapters under this
part: the first chapter is a preliminary chapter which introduces to the
Evidence Act and the second chapter specifically deals with the relevancy
of the facts.
! !18
ADMINISTRATION
Part 2
Part 2 consists of chapters from 3 to 6. Chapter 3 deals with facts which
need not be proved, chapter 4 deals with oral evidence, chapter 5 deals
with documentary evidence and chapter 6 deals with circumstances when
documentary evidence has been given preference over the oral evidence.
Part 3
The last part, that is part 3, consists of chapter 7 to chapter 11. Chapter 7
talks about the burden of proof. Chapter 8 talks about estoppel, chapter 9
talks about witnesses, chapter 10 talks about examination of witnesses,
and last chapter which is chapter 11 talks about improper admission and
rejection of evidence
1.4.4 Indian Evidence Act Classic Classification
In the Evidence Act All the Provisions can be divide in to two Categories (1)
Taking the Evidence (By Court) (2) Evaluation
In Taking the Evidence Court take the Evidence for the Facts (Either "Issue
of Facts" or "Relevant Facts"); The Facts means the things which is said
before the court in connection with the matter, The main thing, which is
Crime in Criminal and Right etc. in Civil matters are main Issues, So main
Issues are known as "Issue of Facts", and the other facts which are
Relevant to it are "Relevant Facts". For those Facts Evidence is Given to the
Court by two ways, One is Orally and Second is Documentary (includes
Electronic Documents), Oral Evidence mostly suggest the Verbal deposition
before the Court (and not other wise), and Which includes oral statement
regarding materials too, Documentary Evidence suggest the Documents
In Evaluation as above said by looking in to the Oral and Documentary

Evidence Court decide whether particular fact is proved or not, or facts are
proved or not, In Evaluation there are two concepts to prove facts; One is
Prove (Prove,Disprove or Not prove) and Other is Presumption (that fact is
proved) (may Presume, Shall presume and Conclusive proof) After going to
Oral and Documentary Evidence Court see that whether any fact or facts
are proved by looking to such evidence or not? If at all no evidence is given
or enough evidence is given for the fact its said fact is 'Not proved’;
! !19
ADMINISTRATION
1.4.5 Classification of Evidence Act in Four Questions
Evidence Act may be divided in four questions. Question 1 Evidence is

Given of What Answer 1 of Facts ("Issue of Facts" or "Relevant Facts")
Question 2 How the Evidence of such Facts are Given Answer 2 The
Evidence of Such Facts is Given Either by way of "Oral Evidence" or
"Documentary Evidence' Question 3 On whom the Burden to Prove Facts
lies Answer 3 "Burden of Proof"(of particular fact) or "Onus of proof" (to
prove whole case) Question 4 What are the Evaluation of the Facts.
Answer 4 The Evaluation is "Prove" or "Presumpation"(of prove); The fact
is either 'prove','disprove', or 'Not prove'; or there may be presumption
that prove of facts "may presume', 'shall presume', or 'conclusive proof’.
1.5 POLICE ACT
Police Act is a stock short title used for legislation in India, Malaysia
and in England and Wales relating to police forces and officers. In
India, police act came into force in 1861.
1.5.1 Contents
An Act for the Regulation of Police
1.5.2 Preamble
Where as it is expedient to re-organize the police and to make it a more
efficient instrument for the prevention and detection of crime.
1.5.3. Interpretation clause
The following words and expressions in this Act shall have the meaning
assigned to them, unless there be something in the subject of context
repugnant to such construction , that is to say-
a. the words "Magistrate of the district" shall mean the chief officer
charged with the executive administration of a district and exercising
the powers of a Magistrate, by whatever designation the chief officer
charged with such executive administration is styled;
b. the word "Magistrate" shall include all persons within the general police
district, exercising all or and of the powers of a Magistrate,
! !20
ADMINISTRATION
c. the word "Police" shall include all persons who shall be enrolled under
this Act; the word "general police-district" shall embrace any presidency,
State of place or
d. the words "District Superintendent" and "District Superintendent of

Police" shall include any Assistant District Superintendent or other
person appointed by general or special order of the State Government
to perform all or any of the duties of a District Superintendent of Police
under this Act in any district;]
e. the word "property" shall include any movable property, money or

valuable
1.5.4 Death in custody

A death in custody is a death of a person in the custody of the police,
prison service or other authorities. Death in custody remains a
controversial subject, with the authorities often being accused of abuse,
neglect, racism and cover-ups of the causes of these deaths.
1.5.5. Encounter killings by police

An encounter is an Indian euphemism used to describe extrajudicial
killings by the police or the armed forces of suspected gangsters or
terrorists in gun battles. In a fake encounter, the police or armed forces
kill the suspects, when they are either in custody or are unarmed, and then
claim to have shot them in self-defense. In such cases, the police may
plant weapons on or near the corpses to provide a justification for killing
the individual. To explain the discrepancy between records that show that
the individual was in police custody at the time of his "encounter", the
police may say that the suspect had escaped. Such killings are not
authorized by a court or by the law.
In the 1990s and the mid-2000s, the Mumbai Police used encounter killings
to cripple the city's underworld and break down a rampant extortion
racket. The police officers, who came to be known as "encounter
specialists", believed that these killings delivered speedy justice. They were
criticized by human rights activists.
! !21
ADMINISTRATION
1.5.6 Agencies involved to surfacing police custodial deaths are
a. State Human Rights Commission investigates custodial death
b. Independent press
c. Social media
d. RTI query
e. T.V. channels and private news channels
f. CBI
g. Affected family members can make an appeal
1.5.7. Forensic aspect of police custodial deaths

Every human being enjoys fundamental human rights without any
discrimination. Article 21 of the Indian constitution provides guaranteed
right of life and personal liberty to every citizen including the right to
health and the conditions that are essential for health.
POLICE CUSTODY DEATH CAN BE MADE EASIER BY FOLLOWING

DETAILS:
Death in police custody or following police contact:

• It is when someone dies during, or immediately following, contact with
the police during the course of arrest,
• On the street, in a police van,
• By police shooting, during police pursuit,
• In a police station,
• and deaths in hospitals of those who had previously been in police
custody.
An inquest:
• An inquest will usually take place if there has been some other contact
with the police immediately before the death.
• If you believe a death should have been referred to a coroner but has
not, then you should take advice or contact INQUEST and your local
coroner's office.
• If there is a criminal prosecution arising from the investigation of the

death, the coroner will decide whether there needs to be an inquest after
the criminal trial is over.
! !22
ADMINISTRATION
• In the majority of deaths in these circumstances there will be an article 2
inquest (see Section 1.3).
• When someone dies in custody or following contact with police officers

there should be a thorough investigation involving the family, which must
look at what happened and that contributed to or caused the death.
Contact an INQUEST:
• INQUEST is the only independent organisation that works with families

following a death in police custody or following police contact and can
provide advice and support throughout the whole process and with help
in finding a solicitor who can assist us.
• INQUEST's specialist advice service and its associated policy work means
it can provide helpful background - for example information about other
deaths in similar circumstances, relevant policies and practices on the
care of detainees in police custody, inquest verdicts, etc.
Post-mortem
• It is usual practice that there is a post-mortem done almost immediately

- usually within 24-48 hours.
• This will be carried out by a Medical Officer instructed by the coroner.

Sometimes two Medical Officers will be present at the initial post-mortem
and one for the Chief Constable of the police force and one for the
coroner. The police officers involved may also have a representative at
the post-mortem.
• Because the post-mortem happens very quickly following a death,

families are often unaware that it is taking place, or have not had the
chance to take advice.
• If they have any concerns about the way someone died need to think
about whether a second post-mortem should be carried out (see Section
2.2). This is particularly important in cases following the use of force by
police officers, e.g. use of restraint or firearms.
! !23
ADMINISTRATION
A second post-mortem:
• If it is not possible to hold a second post-mortem because the funeral

has already taken place, it is still possible to get an independent Medical
Officer to review and comment on the original post-mortem.
• Contacting a solicitor:
• Need to talk to the solicitor at the beginning about legal funding.
• Solicitor should take a detailed statement from you about what you know
about the circumstances of the death and your concerns.
• If you have not found a solicitor immediately you should keep a note of
all the information relevant to the death so you can make a statement to
your solicitor when you have one.
Independent Police Complaints Commission (IPCC) :
• The IPCC is the public authority with responsibility for the investigation of
deaths in this area.
• Where any death follows police contact and that contact may have
caused or contributed to the death the police are under a duty to refer
the matter as soon as possible to the IPCC.
This includes:
• Fatal police shootings.
• Deaths in police custody.
• Deaths during contact with the police or immediately afterwards where a
link between the contact and the death can be established.
• Road traffic deaths where there has been a police vehicle involved.
• The IPCC may undertake an independent investigation itself, or it can
manage a police investigation.
• Other investigations will be carried out by the police.
• In all cases there will be a named IPCC Commissioner who has overall
responsibility for the investigation. In an independent investigation the
Commissioner will appoint an IPCC Investigator to carry out the
investigation supported by other IPCC staff.
! !24
ADMINISTRATION
Investigations of IPCC :
• IPCC investigators should take evidence from people involved in the

events leading up to the death. They should examine all relevant
documentary evidence, for example custody records and medical
records, as well as looking at any CCTV footage and examining other
physical evidence.
• The evidence gathered during the course of this inquiry forms the basis
of the IPCC investigator's report that then goes to the IPCC
Commissioner along with the documentary evidence. The Commissioner
is responsible for approving the report which will then go to the coroner.
In a case where the IPCC is managing a police investigation the IPCC

retains overall responsibility for the investigation. You can read about the
work of the IPCC on their website.
Statements of family member to the IPCC

• The IPCC may want to interview key family members or friends so that
they can build up a picture of the person who has died to help them
understand what happened
• You can ask the IPCC to investigate particular aspects of the death, if
they are not already doing so - which they may or may not agree to.
Time period for IPCC investigation :

• There is no set timescale for how long the investigation should take to
complete - but you should expect it to take at least six months. The IPCC
guidance states that the family should be told at the start how long it is
likely to take and be given regular updates on its progress.
Any other inquiries :

• If there is going to be an inquest, the coroner will then decide if more
inquiries need to be made in addition to those carried out by the police.
• The coroner will already have the relevant documents from the IPCC
investigation.
• The coroner will then set a date for an inquest. This can be months or
even years after the death occurred.
! !25
ADMINISTRATION
Results of the IPCC investigation:
• Disclosure of the report should happen as early as possible, but at least

28 days before the inquest.
• The IPCC should decide what evidence they are willing to disclose to you
but as a courtesy they will normally seek the agreement of the coroner.
• The IPCC may not agree to you seeing all the documents until they have
completed their report, or not at all. This is something a solicitor working
for you can advise you on further.
• The IPCC can decide not to disclose information prior to the final report
being completed if they believe to do so would cause harm.
• Once it has been decided to go ahead with the inquest and all other
procedures have been completed, you can ask to see the documents
gathered during the investigation.
Use of these documents for campaigning or talking to the media

before the inquest
• It is important not to disclose anything publicly which could be seen to

influence the verdict at the inquest.
• If you are thinking about making a press statement it is wise to talk to

your solicitor and INQUEST first.
Action to take after the inquest:
• After the inquest. You may also want to raise any concerns about what
happened after you have heard all the evidence at the inquest.
You could consider contacting:
• The Home Office Minister responsible for the police.
• Your MP.
• The media.
! !26
ADMINISTRATION
1.6 THE INDIAN JUDICIARY
1.6.1 Introduction
The Indian Judiciary is partly a continuation of the British legal system

established by the British in the mid-19th century based on a typical hybrid
legal system known as the Common Law System, in which customs,
precedents and legislative are all components of the law. The Constitution
of India is the supreme legal document of the country. There are various
levels of judiciary in India - different types of courts, each with varying
powers depending on the tier and jurisdiction bestowed upon them. They
form a strict hierarchy of importance, in line with the order of the courts in
which they sit, with the Supreme Court of India at the top, followed by
High Courts of respective states with district judges sitting in District
Courts and Magistrates of Second Class and Civil Judge (Junior Division) at
the bottom. Courts hear criminal and civil cases, including disputes
between individuals and the government. The Indian judiciary is
independent of the executive and legislative branches of government
according to the Constitution.
1.6.2 Courts
1.6.2.2 High courts
1.6.2.3 District courts
1.6.2.4 Village courts
• On 26 January 1950, the day India's constitution came into force, the
Supreme Court of India was formed in Delhi. The inauguration took place
in the Princes Chamber in the Parliament building complex which also
housed both the Rajya Sabha and the Lok Sabha, also known as the
Council of States and the House of the People, respectively. The Supreme
Court of India comprises the Chief Justice and 30 other Judges appointed
by the President of India, as the sanctioned full strength. Supreme Court
Judges retire upon attaining the age of 65 years. In order to be
appointed as a Judge of the Supreme Court, a person must be a citizen
of India and must have been, for at least five years, a Judge of a high
court or of two or more such Courts in succession, or an advocate of a
high court or of two or more such Courts in succession for at least 10
! !27
ADMINISTRATION
years or he must be, in the opinion of the president, a distinguished
jurist. Provisions exist for the appointment of a Judge of a high court as
an ad hoc judge of the Supreme Court and for retired judges of the
Supreme Court or High Courts to sit and act as Judges of that Court.
• The Constitution seeks to ensure the independence of Supreme Court

Judges in various ways. A judge of the Supreme Court cannot be
removed from office except by an order of the president passed after an
address in each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two-thirds
of members present and voting, and presented to the president in the
same Session for such removal on the ground of proved misbehaviour or
incapacity. A person who has been a Judge of the Supreme Court is
debarred from practising in any court of law or before any other authority
in India.
• The proceedings of the Supreme Court are conducted in English only.

Supreme Court Rules, 1966 are framed under Article 145 of the
Constitution to regulate the practice and procedure of the Supreme
Court.
• The Supreme Court of India is the highest court of the land as

established by Part V, Chapter IV of the Constitution of India. According
to the Constitution of India, the role of the Supreme Court is that of a
federal court, guardian of the Constitution and the highest court of
appeal. Articles 124 to 147 of the Constitution of India lay down the
composition and jurisdiction of the Supreme Court of India. Primarily, it is
an appellate court which takes up appeals against judgments of the High
Courts of the states and territories. However, it also takes writ petitions
in cases of serious human rights violations or any petition filed under
Article 32 which is the right to constitutional remedies or if a case
involves a serious issue that needs immediate resolution. The Supreme
Court of India had its inaugural sitting on 28 January 1950, and since
then has delivered more than 24,000 reported judgments.
! !28
ADMINISTRATION
1.6.2.2 High courts:-
There are 24 High Courts at the State level. Article 141 of the Constitution
of India that high courts are under the control of supreme court. These
courts have jurisdiction over a state, a union territory or a group of states
and union territories Below the High Courts are hierarchies of subordinate
courts in a country like India. These includes such as the civil courts, family
courts, criminal courts and various other district courts. High courts are
designated as constitutional courts under Part VI, Chapter V, Article 214 of
the Indian Constitution.
The High Courts are the principal civil courts of original jurisdiction in the
state along with District Courts which are subordinate to the High courts.
However, High courts exercise their original civil and criminal jurisdiction
only if the courts subordinate to the high court in the state are not
competent (not authorised by law) to try such matters for lack of
pecuniary, territorial jurisdiction. High courts may also enjoy original
jurisdiction in certain matters if so designated specifically in a state or
Federal law. e.g.: Company law cases are instituted only in a high court. In
a country like India, Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from
lower courts and writ petitions in terms of Article 226 of the Constitution of
India. Writ Jurisdiction is also original jurisdiction of High Court. The
precise territorial jurisdiction of each High Court varies.
Judges in a high court in India are appointed by the President of India after
consultation with the Chief Justice of India, Chief Justice of High Court and
the governor of the respective state. The number of judges in a court is
decided by dividing the average institution of main cases during the last
five years by the national average, or the average rate of disposal of main
cases per judge per year in that High Court, whichever is higher.
The oldest High Court in India, established on 2 July 1862 is Calcutta high
court. High courts of India which handle a large number of cases of a
particular region, have permanent benches (or a branch of the court)
established there.
! !29
ADMINISTRATION
1.6.2.3 District courts:-
The District Courts of India are established by the State governments in

India for every district or for one or more districts together taking into
account the number of cases, population distribution in the district. They
administer justice in India at a district level. These courts are under
administrative control of the High Court of the State to which the district
concerned belongs. The district court is presided over by one District Judge
appointed by the Indian state Government.The decisions of District court
are subject to the appellate jurisdiction of the concerned High court.
The district court is presided over by one District Judge appointed by the
state Government. In addition to the district judge there may be number of
Additional District Judges and Assistant District Judges depending on the
workload. The Additional District Judge and the court presided have
equivalent jurisdiction as the District Judge and his district court. The
district judge is also called "Metropolitan session judge" when he is
presiding over a district court in a city which is designated "Metropolitan
area" by the state Government, for example Brinhan Mumbai session judge
.The district court has appellate jurisdiction over all subordinate courts
situated in the district on both civil and criminal matters. Subordinate
courts, on the civil side (in ascending order) are, Junior Civil Judge Court,
Principal Junior Civil Judge Court, Senior Civil Judge Court (also called sub-
court). Subordinate courts, on the criminal side (in ascending order) are,
Second Class Judicial Magistrate Court, First Class Judicial Magistrate
Court, Chief Judicial Magistrate Court.
Gram Nyayalayas having power of Judicial Magistrate of the first class are
being established in Panchayat levels under the Gram Nyayalayas Act,
2008.
1.6.2.4 Village courts

Village courts of India are known as called Lok Adalat (people's court) or
Nyaya Panchayat (justice of the villages), compose a system of alternative
dispute resolution.
They were recognized through the 1888 Madras Village Court Act, then
developed (after 1935) in various provinces and (after 1947) Indian states.
The model from the Gujarat State (with a judge and two assessors) was
used from the 1970s onwards. In 1984 the Law Commission recommended
! !30
ADMINISTRATION
to create Nyaya Panchayats in rural areas with laymen ("having educational
attainments").The 2008 Gram Nyayalayas Act have foreseen 5,000 mobile
courts in the country for judging petty civil (property cases) and criminal
(up to 2 years of prison) cases. However, the Act has not been enforced
properly, with only 151 functional Gram Nyayalayas in the country (as of
May 2012) against a target of 5000 such courts. The major reasons behind
the non-enforcement includes financial constraints, reluctance of lawyers,
police and other government officials.
1.6.3 Issues
"A functioning judiciary is the guarantor of fairness and a powerful weapon
against corruption. But people's experiences in fall far short of this ideal.
Citizens are often unaware of their rights, or resigned, after so many

negative experiences Court efficiency is also crucial, as a serious backlog of
cases creates opportunities for demanding unscheduled payments which
the needy peoples have to pay for it.
1.6.3.1 Judicial backlog

Indian courts have large backlogs. For instance, the Delhi High Court has a
backlog of 466 years according to its chief justice. This is despite the
average processing time of 4 minutes and 55 seconds in the court. In
Uttam Nakate case, it took two decades to solve a simple employment
dispute. However it need to be mentioned that the concept of backlogs
doesn't describe the actual reason for so many cases lying in the courts.
Rather the term "backlog" has been misused ,the right word for describing
the large number of cases pending in the courts today is known as
pendency. As could be understood, the largest numbers of cases that are
actually pending in the Indian Courts are that of minor Motor Vehicle
Cases, petty crimes such as stealing, abusing, insult, slap, etc. It is an
established fact which the Govt. of India accepts that there is 40%
shortage of judicial staff. Opposition and ruling party's corrupt politicians
profit from the delays in the system.
On 12 January 2012, a Supreme Court bench said that people's faith in

judiciary was decreasing at an alarming rate, posing a grave threat to
constitutional and democratic governance of the country. It acknowledged
some of the serious problems such as - 
! !31
ADMINISTRATION
1. Large number of vacancies in trial courts,
2. Unwillingness of lawyers to become judges,
3. Failure of the apex judiciary in filling vacant HC judges posts.
It wanted to seek answers from the government on amicus curiae's

suggestion that access to justice must be made a constitutional right and
consequently the executive must provide necessary infrastructure for
ensuring every citizen enjoyed this right. It also wanted the Government of
India to detail the work being done by the National Mission for Justice
Delivery and Legal Reforms.[13][14][15]
For example ( a case report, reported by BBC) - the case of Mohammed

Idrees, a Pakistani who was held under Indian police control for
approximately 13 years for overstaying his 15- day visa by 2-3 days after
seeing his ill parents in 1999. Much of the 13 years was spent in prison
waiting for a hearing, and more time was spent homeless or living with
generous families. Both states denied him citizenship, leaving him
stateless. The BBC linked these problems to the political atmosphere
caused by the Kashmir conflict. There were many similar cases where
espionage had been charged against non-spies for trivial crimes like
overstaying visas or minor trespass, and hundreds of ordinary citizens held
in prison by both India and Pakistan. The Indian People's Union for Civil
Liberties decried his mistreatment. The Indian Human Rights Law Network
told the BBC that the cause was "officials in the home department",
including the slow court system, and called the case a "miscarriage of
justice, a shocking case".
1.6.3.2 Judicial corruption

Corruption is rampant in India's courts. According to Transparency
International, judicial corruption in India is attributable to factors such as
"delays in the disposal of cases, shortage of judges and complex
procedures, all of which are exacerbated by a preponderance of new
laws".Most disturbing is the fact that corruption has reached the highest
judicial forum i.e. Supreme Court of India. Some notable cases include:
1. In December 2009, noted social activist, campaigner for judicial

accountability and a Supreme Court lawyer Prashant Bhushan in
response to the notice of contempt issued by the Supreme Court (for his
interview to a news magazine in which he had said, "out of the last 16
to 17 Chief Justices, half have been corrupt"), filed an affidavit standing
! !32
ADMINISTRATION
by his earlier comments saying: "It is My Honest And Bonafide
Perception". Later in September 2010, he submitted a supplementary
affidavit in which he submitted evidence to back his allegations. In
November 2010, former Law Minister, Shanti Bhushan echoed Prashant
Bhushan's claim saying: "It is my firm belief that there is a lot of
corruption in judiciary. I am saying the same thing which Prashant
Bhushan had said. The question of apology does not arise. I will rather
prefer to go to jail. The judiciary cannot be cleansed unless the matter
is brought into the public domain".
2. In June 2011, a very widely respected former Chief Justice of India J. S.

Verma echoed these views saying that "certain individuals with doubtful
integrity were elevated within the higher judiciary" He cited the case of
Justice M. M. Punchhi, whose impeachment had been sought by the
campaign for judicial accountability. Justice Verma said he was willing to
permit the allegations to be probed but the political executive refused to
allow this. Justice Verma further explained, "Because the allegations, if
proved, were serious and therefore they required to be investigated, so
that one could know whether they were true or not." He acknowledged
that Justice Punchhi was later elevated to CJI despite facing "serious
allegations". Justice Verma also talked about another former CJIK G
Balakrishnan's continuance as National Human Rights Commission
chairman. Justice Verma said, "He should have demitted long back and
if he doesn't do it voluntarily, the government should persuade him to
do that, otherwise, proceed to do whatever can be done to see that he
demits office.
3. In November 2011, a former Supreme Court Justice Ruma Pal slammed

the higher judiciary for what she called the seven sins. She listed the
sins as:
1. Turning a blind eye to the injudicious conduct of a colleague

2. Hypocrisy - the complete distortion of the norm of judicial
independence
3. Secrecy - the fact that no aspect of judicial conduct including the
appointment of judges to the High and Supreme Court is transparent
4. Plagiarism and prolixity - meaning that very often SC judges lift
whole passages from earlier decisions by their predecessors and do
not acknowledge this - and use long-winded, verbose language
! !33
ADMINISTRATION
5. Self Arrogance - wherein the higher judiciary has claimed crass
superiority and independence to mask their own indiscipline and
transgression of norms and procedures
6. Professional arrogance - whereby judges do not do their homework
and arrive at decisions of grave importance ignoring precedent or
judicial principle
7. Nepotism - wherein favors are sought and dispensed by some judges
for gratification of varying manner.
8. In 2011, Soumitra Sen, former judge at the Kolkata High Court
became the first judge in the India to be impeached by the Rajya
Sabha for misappropriation of funds.
1.6.4 Reforms
E-Courts Mission Mode Project
The E-courts project was established in the year 2005 by GOI. The main
work components of this project was
a. All courts including taluk courts will get computerized

b. The project includes producing witnesses through video conferencing.
c. Filing cases, proceedings, and all other details will be in computerized
As per the project in 2008, all the District courts were initialized under the
project. In 2010, all the District court was computerized. The entry of back
log case has started. The IT department had one system officer and two
system assistants in each court. They initiated the services in the Supreme
Court in June 2011. The case lists and the judgments of most district
courts are available in http://lobis.nic.in. in http://judis.nic.in is used to
connect all High Courts and Supreme Court judgments and cause list.
These websites are updated daily by a technical team. Now the
establishment work is going on taluk courts.
The project also includes producing witnesses through video conferencing.

Filing cases, proceedings, and all other details will be in computers. Each
district court contains 1 system officer and 2 system assistants. This
technical manpower is involved in training the staff, updating web sites
! !34
ADMINISTRATION
Establishment of e-courts in India is in infancy stage. Till the month of
August 2014 we are still waiting for the establishment of first e-court of
India.
!  
! !35
ADMINISTRATION
1.7 REGULATION OF DIFFERENT PROFESSIONAL BODIES
IN INDIA
Objective:
This unit is all about the bodies and authorities which regulates different
streams of medical profession in India. We have discussed the constitution,
history and objectives of such regulatory bodies. It also includes
information about the Bar Council of India, which regulated legal profession
in India.
1.7.1 Medical Council of India:

The Medical Council of India was established in 1934 under the Indian
Medical Council Act, 1933, now repealed with the main function of
establishing uniform standards of higher qualifications in medicine and
recognition of medical qualifications in India and aboard.
But with the rapid progress and innovation of medical profession and
education in India, there was need to amend the existing provisions to
meet the new challenges. The new Indian Medical Council Act, 1956 is
revised version of Indian Medical Council Act, 1933. This later act was
further amended in 1964, 1993 and last in 2001.
The objectives of the Indian Medical Council are as follows:
• Maintenance of uniform standards of medical education, both

undergraduate and postgraduate.
• Recommendation for recognition / de-recognition of medical

qualifications of medical institutions of India or foreign countries.
• Permanent registration / provisional registration of doctors with

recognized medical qualifications,
• Reciprocity with foreign countries in the matter of mutual recognition of

medical qualifications.
! !36
ADMINISTRATION
Additionally it has following important function:
• Inspection / visitation with a view to maintain proper standard of medical

education in India.
• Permission to start new medical colleges, new Courses including P. G. or

Higher Courses, increases of seats etc.
• Recognition / de-recognition of Indian Qualifications / Foreign

qualifications
• Indian Medical Register: Maintenance of All India Medical Register of

persons who hold any of the recognized medical qualification or for the
time being registered with any of the State Medical Councils or Medical
Council of India.
• Registration: Permanent registration / Provisional registration /

Registration of Additional Qualification.
It is important to note that Medical Council of India does not deal with
Registration, duties and responsibilities of Paramedical personnel, Dental
Surgeons and practice of Indian systems of Medicine like Ayurveda,
Siddha, Unani and Homeopathy.
Composition of Council:
Medical Council of India consists of the following members, namely:
a. One member from each State other than a Union Territory to be

nominated by the Central Government in consultation with the State
Government concerned.
b. One member from each University, to be elected from amongst the

members of the medical faculty of the University by members of the
Senate of the University or in case the University has no senate, by
members of the Court.
c. One member from each State in which a State Medical Register is

maintained, to be elected from amongst themselves by persons enrolled
! !37
ADMINISTRATION
on such Register who possess the medical qualifications included in the
First and Second Schedule or in Part-II of the Third Schedule.
d. Seven members to be elected from amongst them are persons who

possess the medical qualifications included in Part I of the Third
Schedule.
e. Eight members to be nominated be the Central Govt.
f. The President and Vice-President of the Council shall be elected by the

members of the Council from amongst themselves.
Important regulations pertaining to functions of the council are as

under.
• The Indian Medical Council Act, 1956.

• Medical Council of India Regulations, 2000.
• The Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002.
• The Screening Test Regulations, 2002.
• Eligibility Requirement for taking admission in an undergraduate medical
course in a Foreign Medical Institution Regulations, 2002.
• Regulations on graduate medical examination, 1997.
• The Postgraduate Medical Education Regulations 2000.
• Establishment of New Medical College Regulations, 1999.
• Medical Council of India (Norms and guidelines for Fees and Guidelines
for admission in Medical Colleges) Regularities 1994.
1.7.2 Dental Council of India:

The Dental Council of India is constituted by an act of parliament 'The
Dentists Act 1948' (XVI of 1948). The main aim of the dentist act 1948 was
to regulate the dental education, dental profession and dental ethics
thereto-which came into existence in March, 1949. The Council is financed
mainly by grants from the Govt. of India, Ministry of Health & Family
Welfare (Department of Health).
The amendments were made through an ordinance promulgated by the

President of India on 27th August 1992 mainly to restrict mushroom
growth of private dental colleges, increase of the seats in any of the course
! !38
ADMINISTRATION
i.e. BDS / MDS and starting of new higher courses without the prior
permission of the Central Govt. Ministry of Health & Family Welfare.
The objectives of the Council are as follows.
In consonance of the provisions of the Act, Dental Council of India is

entrusted with the following objectives.
• Dentist Act, 1948

• Dental Council of India Regulations, 2006
• BDS Course Regulations, 2006
1.7.3 Pharmacy Council of India:

The Pharmacy Council of India was framed on 09.08.1949 under section 3
of the Pharmacy Act. The Pharmacy Act 1948 was enacted on 04.03.1948
with the objective to regulate the profession of pharmacy. The Pharmacy
Council also regulates pharmacy education and profession in India up to
graduate level.
The objective of the Council is as follows.
• Regulation of the Pharmacy Education - diploma in pharmacy & bachelor

of pharmacy in the Country for the purpose of registration as a
pharmacist under the Pharmacy Act., with a valid registration number.
No one in the country can run a pharmacy store without a valid
registration.
• Regulation of principles, Profession and Practice and ethics of Pharmacy.
Additionally, the Council has following important functions:
• To prescribe minimum standard of education required for qualifying as a

pharmacist. Candidate should be 10th pass for enrolling into diploma in
pharmacy course and should be 12th pass, for enrolling into bachelor in
pharmacy course.
• Framing of Education Regulations prescribing the conditions to be fulfilled

by the institutions seeking approval of the Pharmacy Council of India for
imparting education in pharmacy. Therefore all pharmacy college should
be bound the rules and regulation of pharmacy council of India.
! !39
ADMINISTRATION
• To ensure uniform implementation of the educational standards
throughout the country. Therefore the curriculum of B.PHARM courses all
over India should be the same and should not vary from state to state.
• Inspection of Pharmacy Institutions seeking approval under the

Pharmacy Act to verify availability of the prescribed norms, i.e.
Prescribed number of teaching faculties with proper qualification and
research publications.
• To approve the course of study and examination for pharmacists i.e.

approval of the academic training institutions providing pharmacy
courses i.e. Timely examination by recognized universities.
• To withdraw approval, if the approved course of study or an approved

examination does not continue to be in conformity with the educational
standards prescribed by the Pharmacy Council of India
• To approve qualifications granted outside the territories to which the

Pharmacy Act extends i.e. the approval of foreign qualification.
• To maintain Central Register of Pharmacists.
Pharmacy Council of India consists of the following members, namely:
a. Six members, among whom there shall be at least one teacher of each
of the subjects, pharmaceutical chemistry, pharmacy, pharmacology and
pharmacognosy elected by the University Grants Commission from
among persons on the teaching staff of on Indian University or a college
affiliated thereto which grants a degree or diploma in pharmacy;
b. Six members, of whom at least four shall be person possessing a degree

or diploma in and practicing pharmacy or pharmaceutical chemistry,
nominated by the Central Government;
c. One member elected from amongst themselves by the members of the

Medical Council of India;
d. The Director General, Health Services, ex officio
! !40
ADMINISTRATION
e. The Drug Controller, India, ex officio
f. The Director of the Central Drugs Laboratory, ex officio;
g. A representative of the University Grants Commission and a

representative of the All India Council for Technical Education.
h. One member to represent each State elected from amongst themselves

by the members of each State Council, who shall be a registered
pharmacist;
i. One member to represent each State nominated by the State

Government, who shall be a registered pharmacist :
j. One member each representing Union territory.
Important regulations pertaining to functions of the council are as

under.
• Pharmacy Act, 1948.

• Education Regulations, 1991.
• Regulations of the Pharmacy Council of India.
• Standing Orders of the Pharmacy Council of India.
• Pharmacist Oath which is similar to Hippocratic oath taken by medical
graduates
1.7.4 Indian Nursing Council:

The Indian Nursing Council is an Autonomous Body under the Government
of Indian, Ministry of health & family welfare. It was constituted by the
Central Government under section 3(1) of the Indian nursing Council Act,
1947 of parliament. It was passed in order to establish a uniform standard
of training for nurses, midwives and health visitors.
The function and objectives of the Council are as follows.
• To establish and monitor a uniform standard of nursing education for

nurses midwife, Auxiliary Nurse-Midwives and health visitors by doing
inspection of the institutions.
! !41
ADMINISTRATION
• To recognize the qualifications under section 10(2) (4) of the Indian
Nursing Council act, 1947 for the purpose of registration and
employment in India and abroad.
• To give approval for registration of Indian and Foreign Nurses possessing

foreign qualification as prescribed under the Indian Nursing Council Act,
1947.
• To prescribe the syllabus & regulations for nursing programs.
• Power to withdraw the recognition of qualification under the Act in case

the institution fails to maintain its standards. i.e. derecognition of private
nursing college if nursing education is not appropriate.
• To advise the State Nursing Councils, Examining Boards, State

Governments and central Government in various important items
regarding Nursing Education in the Country. Like Maharashtra nursing
council guiding the syllabus for nursing & midwifery to Maharashtra
University of health sciences.
Indian Nursing Council consists of the following members, namely:
a. One nurse enrolled in a state register elected by each State Council; like
from Delhi nursing council
b. Two members elected from among themselves by the heads of

institutions recognized by the Council for the purpose of this clause in
which training is given for obtaining a University degree in Nursing; or
in respect of a post-certificate course in teaching of nursing and in
nursing administration; like dean of medical college selecting two
members from his own teaching institute.
c. One member elected from among themselves by the heads of

institutions in which health visitors are trained;
d. One member elected by the Medical Council of India. I.e. from new
Delhi
! !42
ADMINISTRATION
e. One member elected by the Central Council of the Indian Medical
Association.(IMA)
f. One member elected by the Council of the Trained Nurses Association of

India.
g. One midwife or auxiliary nurse-midwife enrolled in a State Register,

elected by each of the State Councils in the four groups of State
mentioned below, each group of States being taken in rotation in the
following order namely 1] Kerala, Madhya Pradesh, Uttar Pradesh and
Haryana 2] Andhra Pradesh, Bihar, Maharashtra and Rajasthan 3]
Karnataka, Punjab and West Bengal 4] Assam, Gujarat, Tamil Nadu and
Orissa;
h. The Director General of Health Services, ex-officio;
i. The Chief Principal Matron, Medical Directorate, Army Headquarters, ex-

officio; i.e. from armed force medical college and hospital Pune
j. The Chief Nursing Superintendent, Office of the Director General of

Health Services, ex-officio;
k. The Director of Maternity and Child Welfare, Indian Red Cross Society,
ex-officio,
l. The Chief Administrative medical Officer (by whatever name called) of

each State other than a Union Territory, ex-officio;
m. The Superintendent of Nursing Services (by whatever name called) ex-

officio from each of the States in the two groups mentioned below, each
group of States being taken in rotation in the following order, namely :
1] Andhra Pradesh, Assam, Maharashtra, Madhya Pradesh, Tamil Nadu,
Uttar Pradesh, West Bengal and Haryana 2] Bihar, Gujarat, Kerala,
Karnataka, Orissa, Punjab & Rajasthan.
n. Four members nominated by the Central Government, of whom at least
two shall be nurses, midwives or health visitors enrolled in a State
register and one shall be an experienced education list;
! !43
ADMINISTRATION
o. Three members elected by Parliament, two by the House of the People
from among its members and the other by the Council of States from
among its members.
1.7.5 Central Council of Homeopathy:
The central council of Homoeopathy is constituted by the Central

Government under section 3(1) of the Homoeopathy Central Council Act,
1973 of parliament.
Function and objectives of the Council:

The main function of the Central Council of Homoeopathy is to evolve
uniform standards of education in Homoeopathy and the registration of
practitioners of Homoeopathy graduates and post graduates. The
registration of practitioners on the Central Register of Homoeopathy will
check that medicine is not practiced by those who are not qualified in this
system, and those who practice, observe a code of ethics in the profession
of homeopathy.
The Council prescribes and recognizes all homeopathic medicine

qualifications. Any university or medical institutions that desires to grant a
medical qualification in homeopathy is required to apply to the Council,
before starting new homeopathy medical college. The Council is
responsible for constitution and maintenance of a Central Register of
Homoeopathy and for medico-legal matters connected therewith. All
universities and Board of medical institutions in India are required to
furnish all information regarding courses of study and examination pattern
and schedules. The Council is empowered to appoint inspectors at
examinations and visitors to examine facilities to see whether they are
being implemented and carried as per prescribed norms.
Composition of the Council:

Central Council of Homoeopathy consists of the following members,
namely:
a. Such number of members not exceeding five as may be determined by

the Central Government in accordance with the provisions of the First
Schedule from each State in which a State Register of Homoeopathy is
maintained, to be elected from amongst themselves by persons enrolled
on that register as practitioners of Homoeopathy;
! !44
ADMINISTRATION
b. One member from each University to be elected from amongst

themselves by the members of the Faculty or Department (by whatever
name called) of Homeopathy of that University.
c. Such number of members, not exceeding forty percent of the total

number of members elected under clause (a) and (b) as may be
nominated by the Central Government from amongst persons having
special knowledge or practical experience in respect of Homeopathy or
other related disciplines :
1.7.6 Central Council of Indian Medicine (CCIM):
The Central Council of Indian Medicine is the statutory body constituted

under the Indian Medicine Central Council Act, 1970 vide gazette
notification extraordinary part (i) section 3 (ii) dated 10.8.1971. The
Central Council was reconstituted in 1984 & 1995. It is concerned with
teaching and regulation of Ayurved, Siddha, and Unani .
Objective of the Council:

The main object of the Central Council is as under:-
• To prescribe minimum standards of education in Indian Systems of

Medicine viz. Ayurved, Siddha, UNANI Tibb. ( that is alternative system
of medicines)
• To advise Central Government in matters relating to recognition

(inclusion /; withdrawal) of medical qualification in / from second
schedule to Indian Medicine Council Act, 1970.
• To maintain a Central Register on Indian Medicine and revise the register
from time to time. Because of many jhola-chaap doctors practicing
Indian medicines with out proper qualification.
• qualities, one MUST look for in a ideal medical practitioner

a. Standards of Professional Conduct
b. Etiquette
c. Code of ethics to be observed by the practitioners
Additionally, the Council is also responsible to prescribes Standards of

Professional Conduct, Etiquette and Code of Ethics to be observed by the
! !45
ADMINISTRATION
practitioners. The Council is empowered to appoint medical inspectors to
observe the conduct of examinations, and visitors to inspect facilities in
colleges, hospital and other institutions imparting instruction in Indian
medicine.
The central Council of Indian medicines is also responsible to frame

regulations with respect teaching of Indian medicines are
• the courses and period of study, including practical training to be

undertaken, the subject of examinations, and the standards of
proficiency therein to be obtained in any university, board or medical
institution for grant of recognized medical qualification;
• the standard of staff, equipment, accommodation, training and other

facilities for education in Indian medicine and;
• The conduct of professional examinations, etc.
Central Council of Indian Medicine consists of the following members,

namely:
a. such number of members not exceeding five as may be determined by

the Central Government in accordance with the provisions of the First
Schedule for each of the Ayurveda, Siddha and Unani systems of
medicine from each State in which a State Register of Indian Medicine is
maintained, to be elected from amongst themselves by person enrolled
on the Register as practitioners of Ayurveda, Siddha or Unani, as the
case may be;
b. one member for each of the Ayurveda, Siddha and Unani systems of
medicine from each University to be elected from amongst themselves
by the members of the Faculty or Department (by whatever name
called) of the respective system of medicine of that University;
c. Such member of members, not exceeding thirty per cent of the total
number of members elected under clauses (a) and (b) as may be
nominated by the Central Government, from amongst persons having
special knowledge or practical experience in respect of Indian medicine :
! !46
ADMINISTRATION
Provided that until members are elected under clause (a) or clause (b)
in accordance with the provisions of this Act and the rules made there
under, the Central Government shall nominate such number of
members, being person qualified to be chosen as such under the said
clause (a) or clause (b) as the case may be as that Government thinks
fit; and references to elected members in this Act shall be construed as
including references to members so nominated.
The President of the Central Council shall be elected by the members of the
Central Council from amongst themselves in such manner as may be
prescribed.
There shall be a Vice-President for each of the Ayurveda, Siddha and Unani
systems of medicine who shall be elected from amongst themselves by
members representing that system of medicine.
1.7.7 Bar Council of India:
The Bar Council of India constituted under the Advocates Act 1961. It lays
down the standards of professional conduct and etiquette and also
standards of legal education. The State Bar Councils does enrolment of
advocates and enforcement of discipline is part of the obligations of the
State Bar Council of India is body corporate having perpetual succession
and a common seal, with power to acquire and hold property, both
movable and immovable and to contract and may by the name by which it
is known sue and be sued.
Functions of Bar Council of India:
The Bar Council of India performs following functions:
a. to lay down standards of professional conduct and etiquette for

advocates , concerned with the legal matters
b. to lay down the procedure to be followed by its disciplinary committee

and the disciplinary committee of each State Bar Council, for example
Maharashtra bar council
c. to safeguard the rights, privileges and interest of advocates;
! !47
ADMINISTRATION
d. To promote and support law reform, for example reforms in domestic
violence, rape, etc.
e. to dealt with and dispose of any matter arising under this Act, which
may be referred to it by a State Bar Council;
f. to exercise general supervision and control over State Bar Councils;
g. to promote legal education and to lay down standards of such education

in consultation with the Universities in India imparting such education
and the State Bar Councils;
h. to recognize Universities whose degree in law shall be a qualification for

enrolment as an advocate and for that purpose to visit and inspect
Universities or cause the State Bar Councils to visit and inspect
Universities in accordance with such directions as it may given be in this
behalf;
i. To conduct seminars and organize talks on legal topics by eminent

jurists and publish journals and papers of legal interest; to organize
national conference on changing legal trends in India.
j. Legal aid to the poor in the prescribed manner; for example free of cost
provision of advocate for poor people.
k. to recognize on a reciprocal basis foreign qualifications in law obtained
outside India for the purpose of admission as an advocate under this
Act;
l. to mange and invest the funds of the Bar Council;
m. to provide for the election of its members;
Composition of the Bar Council of India:
The BAR Council of India consists of 18 Members. Out of the 18 members,

the Attorney General of India and the Solicitor General of India are Ex-
officio Members. The other 16 Members represent the 16 State Bar
Councils in the country. The Members are elected for a period of five years
and the Bar Council of India elects its own Chairman and Vice-Chairman for
a period of two years from among the Members of the Bar Council of India.
! !48
ADMINISTRATION
1.8 BASIC LEGAL TERMINOLOGIES AND JURISPRUDENCE
Objective:
This Unit wills male you aware about the meaning of legal terminologies
which are used commonly. This would also enable you to understand
examples, illustrations and case laws which have been cited in the later
part of the course module.
Legal Words:
Plaintiff:
A plaintiff, also known as a claimant or complainant, is the party who
institutes a civil litigation before a court to seek certain legal remedy. For
e.g., in a civil proceeding of first instance, if the case titled is A v/s B, it is
to be understood that A is Plaintiff. Or simply the person who rises
complains in the court, to seek legal justice.
Jurisdiction:
Jurisdiction is the extent of authority granted to a Court to try, entertain
and adjudicate a legal proceeding or simply within the jurisdiction of the
court of law. Jurisdiction can be of many kind and types. For e.g., territorial
jurisdiction, pecuniary jurisdiction etc.
Defendant:
Similarly, Defendant is a person who is called upon to answer the allegation
made in the suit and defends the claims made against him, if the case title
is A v/s B, it is to be understood that B is Defendant.
Appeal:
An appeal is a process for making a formal challenge to judgment passed
by the Lower Court. Appeal is always made to a higher judicial authority.
Usually appeal is made by accused after the judgement given by the lower
court and appeal is made in higher court, i.e. in the Supreme Court.
Cause of action:
Cause of action is a recognized kind of legal claim that a plaintiff pleads or
alleges in a complaint to institute the legal proceeding. For e.g. in a suit for
trespass, the cause of action can be illegal entry of a third party. Similarly,
failure to pay the money can be a cause of action for money suit. For
! !49
ADMINISTRATION
medico-legal cases, usually the opinion of medical expert or from the panel
of medical board, opinion are taken. ( for example doctor in the witness
box )
Accused:
A person charged with a criminal offence. For e.g. in a criminal proceeding
of first instance, if the case title is State of Maharashtra v/s B, it is to be
understood that B is Accused. For example a case of murder, serial bomb
blast, rape etc.
Bail:
Bail is some form of property deposited with the court adjudicating the
offence, as a security to release accused from jail, on the understanding
that the suspect will return for trial or forfeit the bail.
Arrest:
An arrest is the action of the police, to take a person into custody. In India,
arrest can be made with or without warrant. In all cognizable cases like
number, rape arrest can be made without warrant. Whereas in non
cognizable cases, arrest can be made only with the permission of the
Magistrate. Like in the office of civil SDO or District magistrate office.
Cognizance:
If the adjudicating Court finds that the complainant has a prima facie case,
the Court initiates the legal proceeding and this is called as taking
cognizance. On taking cognizance, the Court issues summons / notice to
the Accused to appear before the Court and answer the charges.
Suit:
It is civil action brought before a court, to establish violation of private
right and recover damages or any other relief.
Damages:
Damages refer to the sum of money decreed to the plaintiff in the
judgment passed by the Court.
Compensation:
This also refers to sum of money recoverable by the Plaintiff from the
Defendant on grounds of breach of duty by the Defendant.
! !50
ADMINISTRATION
Offense:
An offence is a violation of the penal law. In India, major penal law is
known as Indian Penal Code, 1860.Such as Indian penal code for sexual
offences -rape, sodomy etc.
Breach:
Breach is violation of the terms and conditions of the Agreement. In torts,
it is violation of duty of an individual towards other. In medical field if a
doctor charges his professional charges for examining his colleague, then it
is against Hippocratic Oath and is equivalent to professional misconduct.
Right:
Right is basically some king of entitlement or privileges which an individual
enjoys being a member of particular society. For e.g. Right to property,
Right to express, right to communicate, right to speak etc.
Fundamental Rights:
Fundamental rights usually encompass those rights which are considered
as basic rights required for dignified existence. In India, fundamental rights
are enshrined in the Part III of the Constitution. Some of important
fundamental eights are: Right to life, Right to equality, Right to equal
opportunity in case of employment. Like every Indian citizen has right to
enjoy healthy life and it is the obligation of every Indian state government
to fulfil this basic human right.
Statutory Rights:
Statutory right is a right conferred upon an individual by a statute [Law].
For example, Code of Civil Procedure provides for remedy of Appeal to a
party aggrieved by the judgment of the lower Court and therefore right to
appeal would be considered statutory.
Contract:
Contract is a legally enforceable exchange of promises or agreement
between parties. Contract law is based on the Latin phrase 'pacta sunt
servanda', which means that the, "agreements must be kept".
Agent:
Agent is a person authorized to act on behalf of another persona person.
Like in medical field, the agent of the health care delivery is doctors, staff
nurses, pharmacist, lab technicians etc.
! !51
ADMINISTRATION
Power of Attorney:
A power of attorney is a kind of agency. It is instrument of authorization to
act on someone else's behalf in the matter, which are mentioned in the
Power of Attorney. The person authorizing the other to act is the principal
or gran tor (of the power) and the one authorized to act is the agent or
attorney or grantee. In medical field, there is no one having the power of
attorney regarding treatment of the patients. Doctors use his professional
skill and it is immune status of the patients and correct diagnosis and
correct line of treatment, which cures the patients
Deed:
Deed is a legal document used to grant / convey a right. For e.g. Sale Deed
- sale deed of a nursing home, Lease Deed - which the hospital makes in
order to purchase the land to build a new hospital.
F.I.R.:
FIR is shortened version of First Information Report. It is a report of
information that reaches the police authorities concerned first in point of
time and that is why it is called the First Information Report. FIR can be
made orally or in writing by the victim of a cognizable offence or by
someone on his / her behalf by any other person. Such as doctor lodge
F.I.R., if doctor's passport becomes missing as it is important from security
point.
Witness:
Witness is someone who has knowledge about the matter contained in any
legal proceeding, whether civil or criminal. A witness who has seen the
event firsthand is known as an eye- witness. Witnesses are often called
before a court of law to depose about the subject matter of the proceeding.
Whenever a medical professional is summoned by court, then medical
professional opinion is known as expert witness, such as in the case of
dying declaration.
Hostile Witness:
Hostile witness is a witness in a criminal trial who deviates from his original
statement made to Police. For e.g. A made a statement to the Police
stating that he has seen B stabbing C. however during the Court trials, he
deviates from the statement made to the police and informs the Court that
he was not present during the occurrence of crime. A is declared as Hostile
! !52
ADMINISTRATION
Witness. In the medical field, a psychiatrist opinion is taken if someone
tries to commit a crime repeatedly in the lucid interval, like serial killer or
serial rapist.
Evidence:
Evidence, refers to anything that is used to prove or disprove any fact in
issue. For e.g. an identity Card can prove that A is student of a particular
institution. Therefore Identity Card is evidence. Like in medical field, what
a doctor uses for treating his illness is always based on facts collected by
evidence. This is known as evidence based medicine.
Negligence:
Negligence is a type of tort. It means that an individual through his act or
omission has breached certain duty towards other members of society
which has resulted in damages to the said individual. Negligent acts /
omission gives the aggrieved party right to be compensated for the harm
to their body, property, mental well-being, financial status or relationships.
For example if a doctor commit a negligence while giving medical care ,
then it is known as medical negligence and can be penalized under
consumer protection act .
Fine:
Fine is money paid as a pecuniary sanction for the commission of offense.
Fine can be imposed in day to day civil cases as well in criminal cases, fine
for late fees submission for a medical graduate studying in a medical
college.
Plaint:
Plaint is a legal document, which contains in detail the subject matter of a
particular civil proceeding. It sets out the basic facts that would entitle the
plaintiff to a remedy. Like documents containing court proceedings.
Complaint:
As plaint in civil, Complaint is used in sense of criminal proceedings in
India. Like document which contains which deals with criminal offense
imposed on the medical professional such an s the case of sexual offense,
while examining the patient.
! !53
ADMINISTRATION
Complainant :
As Plaintiff, Complainant is the party who initiates a legal proceeding. This
term is generally referred in a criminal proceeding.
Warrant:
Warrant is order of a Court enforcing appearance of a party of the
proceeding / witness, if such party / witness fail to appear on the
scheduled date of appearance on service of summons. Like warrant issued
for an absconding pharmacist, after finding financial irregularities in
medical audit done for central medical stores.
Confiscation:
Confiscation is obtaining custody of material and goods by a government or
other public authority.
Search Warrant:
Search warrant is an order by the magistrate which authorizes the police to
conduct a search of a person or location to obtain evidence in respect to a
criminal proceeding. Like warrant issued for an absconding doctors, found
guilty in a case of sexual offense.
Summons:
Summons is again order of a Court, directing party to the proceeding to
appear before the Court on the date as mentioned in the summons.
Whenever the court summons, a hospital or medical professional related to
medico-legal cases, then in such cases, concerned person or the hospital
have to response within 72 hours of getting notice or summons.
Injunction:
Injunction is a whereby a party is required to do, or to refrain from doing,
certain acts. Injunction may be temporary or permanent. Like in a hospital
set up, only public relation officer will address press conference, regarding
the release of health bulletin of important dignitaries.
Affidavit:
An affidavit is a formal statement of fact, signed by the affiant on oath.
Conviction:
Conviction is the order passed the court declaring the accused to be guilty
of a crime.
! !54
ADMINISTRATION
Acquittal:
Acquittal is order of court declaring an accused not guilty of the offence
alleged and charged against him.
Defamation:
Defamation is the publication of a statement, expressly stated or implied to
be factual, that may harm the reputation of an individual.
Omission:
Omission is failure to do something which any reasonable man with
ordinary prudence would have done.
Conveyance:
This is the procedure by which any movable or immovable property is
transferred from person to another for e.g. Sale, Lese, and Mortgage.
Intention:
Intention is the first stage of criminal liability. It signifies that "unlawful
object" to be attained by an accused while committing a crime. For e.g.
while committing theft, the intention of accused is to deprive a person of a
property, without his consent, which is in possession of other person.
Motive:
In legal terms this is defined as "intention behind intention". For e.g. a
person intends to kill
somebody for revenge. "Revenge" is the motive.
Trespass:
Trespass can be defined as an act of entering into somebody else's land or
property without permission of the owner or person in possession. Trespass
can be civil as well as criminal.
Nuisance:
Nuisance is a trot which the right of enjoyment is being infringed. Nuisance
is divided into public nuisance and private nuisance. Like nuisance
elements in civil hospital and corporate hospitals are different.
Ratification:
Ratification is the act of giving sanction to an act, which has been done
prior to the said sanction.
! !55
ADMINISTRATION
Will:
Will is a document expressing the desires of the testator with regard to the
disposition of property after his death.
1.9: PROFESSIONAL CONDUCT, ETIQUETTE AND ETHICS

REGULATIONS, 2002 AND AMENDMENTS
In exercise of the powers conferred under section 20A read with section
33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical
Council of India, with the previous approval of the Central Government,
hereby makes the following regulations relating to the Professional
Conduct, Etiquette and Ethics for registered medical practitioners, namely:-
Short Title and Commencement: (1) These Regulations may be called
the Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002. (2)They shall come into force on the date of their
publication in the Official Gazette.
1.9.1 CHAPTER I - CODE OF MEDICAL ETHICS
A. Declaration: Each applicant, at the time of making an application for

registration under the provisions of the Act, shall be provided a copy of
the declaration and shall submit a duly signed Declaration as provided in
Appendix 1. The applicant shall also certify that he/she had read and
agreed to abide by the same.
B. Duties and responsibilities of the Physician in general:
1.1: Character of Physician (Doctors with qualification of MBBS or MBBS

with post graduate degree/ diploma or with equivalent qualification in any
medical discipline):
1.1.1 : A physician shall uphold the dignity and honor of his medical
profession.
1.1.2 : The prime object of the medical profession is to render service to

humanity; reward or financial gain is a subordinate consideration. Who- so-
ever chooses his profession, assumes the obligation to conduct him in
accordance with its ideals. A physician should be an upright man, mastered
in the art of healing s. He shall keep himself pure in character and be
! !56
ADMINISTRATION
diligent in caring for the sick; he should be modest, sober, patient, prompt
in discharging his duty without anxiety; conducting himself with propriety
in his profession and in all the actions of his life.
1.1.3 : No person other than a doctor having qualification recognized by

Medical Council of India and registered with Medical Council of India/State
Medical Council (s) is allowed to practice Modern system of Medicine or
Surgery. A person obtaining qualification in any other system of Medicine is
not allowed to practice Modern system of Medicine in any form. It does not
take into account Ayurvedic / homeopathic / unnai system qualified
doctors.
1.2 Maintaining good medical practice:
1.2.1 The Principal objective of the medical profession is to render service

to humanity with full respect for the dignity of profession and mankind.
Physicians should gain the confidence of patients entrusted to their care,
rendering to patients each patients with full measure of service and
devotion. Physicians should try continuously to improve medical knowledge
and skills and should make available to their patients and colleagues the
benefits of their professional attainments.i.e. They should regularly attend
conferences, seminar and keep their knowledge and skill updated. The
physician should practice art of healing founded on scientific basis and
should not associate professionally with anyone who violates this principle
and also try to bring in the knowledge of the professional bodies for such
wrong doings. The honored ideals of the medical profession imply that the
responsibilities of the physician extend not only to individuals but also to
society.
1.2.2 Membership in Medical Society: For the advancement of his

profession, a physician should affiliate with associations and societies of
allopathic medical professions and involve actively in the functioning of
such bodies. Like IMA (Indian medical association), AIOS (All India
ophthalmic society), life time member of Indian association of occupational
health.etc
1.2.3 A Physician should participate in professional meetings as part of

Continuing Medical Education programmes, for at least 30 hours every five
years, organized by reputed professional academic bodies or any other
authorized organizations. The compliance of this requirement shall be
! !57
ADMINISTRATION
informed regularly to Medical Council of India or the State Medical Councils
as the case may be. On this basis, their registration number will be
renewed.
1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records pertaining to his /
her indoor patients for a period of 3 years from the date of commencement
of the treatment in a standard proforma laid down by the Medical Council
of India and attached as Appendix
1.3.2. If any request is made for medical records either by the patients /
authorized attendant or legal authorities involved, the same may be duly
acknowledged and documents shall be issued within the period of 72
hours, especially if summoned by court, in relation to medico-legal cases.
1.3.3 A Registered medical practitioner shall maintain a Register of Medical

Certificates giving full details of certificates issued. When issuing a medical
certificate he / she shall always enter the identification marks of the
patient and keep a copy of the certificate. He / She shall not omit to record
the signature and/or thumb mark, address and at least one identification
mark of the patient on the medical certificates or report. The medical
certificate shall be prepared as in Appendix 2.it is advisable to retain one
copy as for future reference by issuing doctor.
1.3.4 Efforts shall be made to computerize medical records for quick

retrieval.
1.4 Display of registration numbers:
1.4.1: Every physician shall display the registration number accorded to

him by the State Medical Council / Medical Council of India in his clinic and
in all his prescriptions, certificates, money receipts given to his patients.
Usually if the MBBS degree or post graduate qualification is by MCI
approved and completed by a recognized medical institute, then the
registration accorded to medical professional by their respective state
medical council are permitted to carry the same registration all over India.
! !58
ADMINISTRATION
1.4.2: Physicians shall display as suffix to their names only recognized
medical degrees or such certificates/diplomas and memberships/honors
which confer professional knowledge or recognizes any exemplary
qualification/achievements.( for MBBS, M.S.- ENT, OR MBBS , DGO, MBBS,
M.D.-MED, DM- GASTROLOGY ETC)
1.5 : Use of Generic names of drugs: Every physician should, as far as

possible, prescribe drugs with generic names of the medicines and he / she
shall ensure that there is a rational prescription and use of drugs.
1.6 :Highest Quality Assurance in patient care: Every physician should

aid in safeguarding the profession against admission to it of those who are
deficient in moral character or education.Physician shall not employ in
connection with his professional practice any attendant who is neither
registered nor enlisted under the Medical Acts in force and shall not permit
such persons to attend, treat or perform operations upon patients
wherever professional discretion or skill is required. This is very important,
when doctor is out of station for 6 months and hand over his clinic to a
locum doctor in his absence to handle the patients in his clinic. This
becomes more complicated when his clinic or his nursing home is
registered under nursing home act and locum doctor's qualification is not
proper
1.7: Exposure of Unethical Conduct: A Physician should expose,

without fear or favor, incompetent or corrupt, dishonest or unethical
conduct on the part of members of the profession. Such as unethical
referral a charge, which is given to referring doctor's for un-necessary and
non indicated investigation.
1.8: Payment of Professional Services in medical field: The

physician, engaged in the practice of medicine shall give priority to the
interests of patients. The personal financial interests of a physician should
not conflict with the medical interests of patients. A physician should
announce his fees before rendering service and not after the operation or
treatment is under way. Remuneration received for such services should be
in the form and amount specifically announced to the patient at the time
the service is rendered. It is unethical to enter into a contract of "no cure
no payment". Physician rendering service on behalf of the state shall
refrain from anticipating or accepting any consideration. Such type of
! !59
ADMINISTRATION
dissatisfied patient's can go consumer protection forum and lodge
complaint under consumer protection act.
1.9: Evasion of Legal Restrictions: The physician shall observe the laws
of the country in regulating the practice of medicine and shall also not
assist others to evade such laws. He should be cooperative in observance
and enforcement of sanitary laws and regulations in the interest of public
health. A physician should observe the provisions of the State Acts like
Drugs and Cosmetics Act, 1940; Pharmacy Act, 1948; Narcotic Drugs and
Psychotropic substances Act, 1985; Medical Termination of Pregnancy Act,
1971; Transplantation of Human Organ Act, 1994; Mental Health Act,
1987; Environmental Protection Act, 1986; Pre-natal Sex Determination
Test Act, 1994; Drugs and Magic Remedies (Objectionable Advertisement)
Act, 1954; Persons with Disabilities (Equal Opportunities and Full
Participation) Act, 1995 and Bio-Medical Waste (Management and
Handling) Rules, a part of environmental protection,1998 and such other
Acts, Rules, Regulations made by the Central/State Governments or local
Administrative Bodies or any other relevant Act relating to the protection
and promotion of public health. He should be regularly aware with latest
amending in the above mentioned law which is released by official gazette
from time to time.
1.9.2: CHAPTER 2 - DUTIES OF PHYSICIANS TO THEIR PATIENTS
1.9.2.1 Obligations to the Sick (the ethical behaviour of the

physician, while on duty)
2.1.1: Though a physician is not bound to treat each and every person
asking his services, he should not only be ever ready to respond to the
calls of the sick and the injured as he also a human being, but should be
mindful of the high character of his mission and the responsibility he
discharges in the course of his professional duties. In his treatment, he
should never forget that the health and the lives of those entrusted to his
care depend on his skill and attention. A physician should endeavour to add
to the comfort of the sick by making his visits at the hour indicated to the
patients i.e. He should attend and give adequate treatment with in golden
period and visit the admitted patients as per his routine visit schedule ,
expect in the cases of emergency. This is because unnecessary visit of
physician increases the indoor patient's hospital bill. A physician advising a
patient to seek service of another physician is acceptable; however, in case
! !60
ADMINISTRATION
of emergency a physician must treat the patient. No physician shall
arbitrarily refuse treatment to a patient. However for good reason, when a
patient is suffering from an ailment which is not within the range of
experience of the treating physician, the physician may refuse treatment
and refer the patient to another physician. This usually done by MBBS
doctors who refer the patient to the specialist such surgeon, cardiologist,
pulmonologist etc as the case may require specific care and initiation of the
treatment at right time.
2.1.2. Medical practitioner having any incapacity detrimental to the patient

or which can affect his performance vis-à-vis the patient is not permitted to
practice his profession
2.2. Patience, Delicacy and Secrecy: quality or qualities of the physician

is expected by patient and his relatives
a. He should maintain Patience while examining his patients

b. He should handle his critical patients with Delicacy
c. He should not reveal the Secrecy of his patient to unknown persons
Confidences concerning individual or domestic life entrusted by patients to

a physician and defects in the disposition or character of patients observed
during medical attendance should never be revealed unless their revelation
is required by the laws of the State. Sometimes, however, a physician must
determine whether his duty to society requires him to employ knowledge,
obtained through confidence as a physician, to protect a healthy person
against a communicable disease to which he is about to be exposed. In
such instance, the physician should act as he would wish another to act
toward one of his own family in like circumstances .But in the view of lager
benefit of the society, he should the patient disease status to his family
members, for example if the husband is detected seropositive, then in such
case , it is the duty of the physician to disclose this type patients personal
matters , at least with his wife., so that the screening of entire family
members can be done and adequate treatment can be started. Similarly a
case of tuberculosis should also be disclosed in the family members, so
that entire family members and the neighbours living in immediate vicinity
can take adequate precautions.
! !61
ADMINISTRATION
2.3. Prognosis: The physician should neither exaggerate nor minimize the
gravity of a patient's condition. He should ensure himself that the patient,
his relatives or his responsible friends have such knowledge of the patient's
condition as will serve the best interests of the patient and the family. Too
much exaggeration of the illness can lead to negative impact on the
patients mind and can lead to the commitment suicide in the state of acute
psychosis by the affected patients, such as revealing the truth of diseases
such as cancer, HIV positive, tuberculosis, leprosy, fetal anomaly in the
growing fetus to a pregnant mother etc.
2.4. The Patient must not be neglected: A physician is free to choose

whom he will serve. He should, however, respond to any request for his
assistance in an emergency. Once having undertaken a case, the physician
should not neglect the patient, nor should he withdraw from the case
without giving adequate notice to the patient and his family. Provisionally
or fully registered medical practitioner shall not wilfully commit an act of
negligence that may deprive his patient or patients from necessary medical
care. No nursing home and private hospital can refuse the patients in acute
emergency without giving him first aid treatment, even though the patient
is not in the state to pay the hospital expenditures.
2.5. Engagement for an Obstetric case: When a physician who has

been engaged to attend an obstetric case is absent and another is sent for
and delivery accomplished, the acting physician is entitled to his
professional fees, but should secure the patient's consent to resign on the
arrival of the physician engaged. This is very common practice as the
obstetrician, under whom the patient is initially registered may not attend
the call as he may out of station, may not be ''on call'' on that particular
day etc. in such cases the attending obstetrician can attend the
emergency. Simply by signing the consent form by the patient for changing
doctors, can save the other obstetrician attending the call of original
obstetrician and will serve as the documentary evidence and will save him
in case of any untoward happenings.
! !62
ADMINISTRATION
CHAPTER 3
3. DUTIES OF PHYSICIAN IN CONSULTATION
3.1 Unnecessary consultations should be avoided:
3.1.1 However in case of serious illness and in doubtful or difficult

conditions, the physician should request consultation, but under any
circumstances such consultation should be justifiable and in the interest of
the patient only and not for any other consideration. For example if the
patient is young diabetic and coronary angiography reveals triple vessel
disease, then in such case treating cardiologist can ask his fellow
cardiothoracic surgeon to take up the case , as in such type of patients ,
the patient will require CABG surgery by cardiothoracic surgeon and NOT ,
PTCA procedure& stenting by cardiologist.
3.1.2 Consulting pathologists /radiologists or asking for any other

diagnostic Lab investigation should be done judiciously and not in a routine
manner, in order to make money by the treating physician, as unnecessary
and non-indicated test will only increase the patient's expenditures.
3.2. Consultation for Patient's Benefit: In every consultation, the

benefit to the patient is of foremost importance. All physicians engaged in
the case should be frank with the patient and his attendants. Always reveal
the truth and prognosis about the patient's illness, with the patients or to
his relatives as the case may be.
3.3. Punctuality in Consultation: Utmost punctuality should be

observed by a physician in making themselves available for consultations.
This is very important to the doctors posted in casualty and emergency,
labor wards, ICCU, NICCU, burn unit, trauma & accidents unit, where there
is need of doctors to be ON CALL, 24 hours/day, 7 -days
/ week, 365 days/ year.
3.4. Statement to Patient after Consultation:
3.4.1 : All statements to the patient or his representatives should take

place in the presence of the consulting physicians, except as otherwise
agreed. The disclosure of the opinion to the patient or his relatives or
friends shall rest with the medical attendant. Always keep a female
! !63
ADMINISTRATION
attendant or the relatives of the patients nearby, if a male doctor is
examining the female patients
3.4.2 : Differences of opinion should not be divulged unnecessarily but

when there is Irreconcilable difference of opinion the circumstances should
be frankly and impartially explained to the patient or his relatives or
friends. It would be opened to them to seek further advice as they so
desire. The golden principle in the medicine is that, whenever a organ is to
be amputated - like amputation of the limb or toe due to severe gas
gangrene, then it is advisable to take opinion from two orthopedic
surgeon .Similarly for example whenever an eye has to be enucleated from
the patients, it is always advisable to take opinion from panel of two
ophthalmologist, before enucleation is carried out. This is very common
procedure done in the case of children suffering from childhood tumor of
the eyes- retinoblastoma.
3.5. Treatment after Consultation: No decision should restrain the

attending physician from making such subsequent variations in the
treatment if any unexpected change occurs, but at the next consultation,
reasons for the variations should be discussed/ explained. The same
privilege, with its obligations, belongs to the consultant when sent for in an
emergency during the absence of attending physician. The attending
physician may prescribe medicine at any time for the patient, whereas the
consultant may prescribe only in case of emergency or as an expert when
called for. In many diseases, the medication can change, after the
investigation is done and diagnosis is confirmed. This is very common in
the tropical diseases such plasmodium vivax malaria, plasmodium
falciparum, typhoid, tuberculosis etc where the treatment protocol can
change after the investigation is carried out. Similarly in the surgical cases,
a patient with the pain in right iliac fossa, may be diagnosed to suffer from
acute appendicitis after investigation, may require surgical treatment for
the same latter.
3.6. Patients Referred to Specialists: When a patient is referred to a

specialist by the attending physician, a case summary of the patient should
be given to the specialist, who should communicate his opinion in writing
to the attending physician. It is always advisable to refer the patients to a
specialist, mentioning the sign& symptoms with which the patient
presented and initial first aid treatment given before referring the specialist
for the definitive treatment.
! !64
ADMINISTRATION
3.7. Fees and other charges:
3.7.1. A physician shall clearly display his fees and other charges on the
board of his chamber and/or the hospitals he is visiting. Prescription should
also make clear if the Physician himself dispensed any medicine. If not
displayed about his professional charges on his name plate, then at least
an original copy of the doctor's consultation receipt should be given to
patient. On the doctors name plate, it is essential to mention his
qualification, his specialties, visiting schedule - timing and days of his
visits.
3.7.2. A physician shall write his name and designation in full along with
registration particulars in his prescription letter head-i.e. Doctor's
prescription pad. Note: In Government hospital where the patient-load is
heavy, the name of the prescribing doctor must be written below his/her
signature or advised to put his official stamp depicting his name,
qualification, designation, registration, validity of the of his registration
number, wherever his / her signature is.
CHAPTER 4
4. RESPONSIBILITIES OF PHYSICIANS TO EACH OTHER
4.1. Dependence of Physicians on each other: A physician should

consider it as a pleasure and privilege to render gratuitous service to all
physicians and their immediate family dependants. There should be feeling
of love, affection, & devotion by a doctor towards his patient and his noble
profession.
4.2. Conduct in consultation: In consultations, NO insincerity, rivalry or

envy should be Indulged in. All due respect should be observed towards
the physician in-charge of the case and no statement or remark be made,
which would impair the confidence reposed in him. For this purpose no
discussion should be carried on in the presence of the patient or his
representatives. It is unethical to highlight the mistake committed by one
consultant, in front of patient or their relatives.
4.3. Consultant not to take charge of the case: When a physician has
been called for Consultation, the Consultant should normally not take
charge of the case, especially on the solicitation of the patient or friends.
! !65
ADMINISTRATION
The Consultant shall not criticize the referring physician. He /she shall
discuss the diagnosis treatment plan with the referring physician. For
example, if dentist refer the patient who are on anti-coagulant, before
tooth extraction, then cardiologist should restrict his duty on only
commenting on whether to or not to stop anti-coagulant, before tooth
extraction. He should not comment on the professional skill of referring
dentist.
4.4. Appointment of Substitute: Whenever a physician requests another

physician to attend his patients during his temporary absence from his
practice, professional courtesy requires the acceptance of such
appointment only when he has the capacity to discharge the additional
responsibility along with his / her other duties. The physician acting under
such an appointment should give the utmost consideration to the interests
and reputation of the absent physician and all such patients should be
restored to the care of the latter upon his/her return. This is a very
common practice in the medical profession, as many times renowned
surgeon, cardiologist, physician etc may go abroad to gain higher
qualification and fellowship, and will appoint his colleague as the locum to
look after his clinic and his treated patients during his absence.
4.5. Visiting another Physician's Case: When it becomes the duty of a

physician occupying an official position to see and report upon an illness or
injury, he should communicate to the physician in attendance so as to give
him an option of being present. The medical officer / physician occupying
an official position should avoid remarks upon the diagnosis or the
treatment that has been adopted. This is known as maintain the
professional secrecy of the noble medical profession as doctor are
considered, next to god in the Indian society.
CHAPTER 5: DUTIES OF PHYSICIAN TO THE PUBLIC AND TO THE

PARAMEDICAL PROFESSION
5.1. Physicians as Citizens: Physicians, as good citizens, possessed of

special training should disseminate advice on public health issues. They
should play their part in enforcing the laws of the community and in
sustaining the institutions that advance the interests of larger benefit of
society & humanity. They should particularly co- operate with the
authorities in the administration of sanitary/public health laws and
regulations. For this reason only, few laws were enacted by the
! !66
ADMINISTRATION
government of INDIA such as Environmental Protection Act, 1986, Drugs
and Magic Remedies (Objectionable Advertisement) Act, 1954; Bio-Medical
Waste (Management and Handling) Rules, a part of environmental
protection, 1998, in order to benefit society as whole.
5.2. Public and Community Health: Physicians, especially those

engaged in public health work, should enlighten the public concerning
quarantine regulations and measures for the prevention of epidemic and
communicable diseases. At all times the physician should notify the
constituted public health authorities of every case of communicable disease
under his care, in accordance with the laws, rules and regulations of the
health authorities. When an epidemic occurs a physician should not
abandon his duty
for fear of contracting the disease himself. This is very important in
controlling the outbreak of highly contagious diseases such as Ebola virus
disease, swine flu, SARS pneumonia etc. WHO maintains the list of
notifiable diseases such as plague, yellow fever, typhus disease, rabies etc.
5.3. Pharmacists / Nurses: Physicians should recognize and promote

the practice of different paramedical services such as, pharmacy and
nursing as professions and should seek their cooperation wherever
required. There are parts of actual medical team and without them a
doctor becomes handicapped and cannot discharge his duty properly.
CHAPTER 6
6. UNETHICAL ACTS: A physician shall not aid or abet or commit any of

the following acts which shall be construed as unethical -
6.1. Advertising:
6.1.1. Soliciting of patients directly or indirectly, by a physician, by a group

of physicians or by institutions or organizations is unethical. A physician
shall not make use of him / her (or his / her name) as subject of any form
or manner of advertising or publicity through any mode either alone or in
conjunction with others which is of such a character as to invite attention
to him or to his professional position, skill, qualification, achievements,
attainments, specialties, appointments, associations, affiliations or honors'
and/or of such character as would ordinarily result in his self
aggrandizement. However this may be highlighted by hospital authorities,
! !67
ADMINISTRATION
social media, independent press, general public forum etc. A physician shall
not give to any person, whether for compensation or otherwise, any
approval, recommendation, endorsement, certificate, report or statement
with respect of any drug, medicine, nostrum remedy, surgical, or
therapeutic article, apparatus or appliance or any commercial product or
article with respect of any property, quality or use thereof or any test,
demonstration or trial thereof, for use in connection with his name,
signature, or photograph in any form or manner of advertising through any
mode nor shall he boast of cases, operations, cures or remedies or permit
the publication of report thereof through any mode. A medical practitioner
is however permitted to make a formal announcement in press. It is
expected that he should not promote the particular pharmaceutical
product, out of his personnel and financial interest and always write the
generic name of the medicines. He should not participate in any drug
promotion agenda of any pharmaceutical committee. A medical practitioner
is however permitted to make a formal announcement in press, regarding
the following:
1. On starting practice, such as newly passed surgeon (MBBS, M.S -

general surgery) starting his private practice.
2. On change of type of practice, such as a MBBS doctor, going to start his

practice in dermatology, after adequate qualification in skin &V.D
(MBBS, M.D.-dermatology)
3. On changing address, such as cardiologist, shifting his clinic and nursing

home to another place
4. On temporary absence from duty for example a physician gone abroad

to take advanced diploma in rheumatology
5. On resumption of another practice, for example an orthopedic joining

new hospital as spine specialist
6. On succeeding to another practice, for example head of department of

medicine in a government medical college becoming director medical
education and research.
7. Public declaration of charges, like official press release about the

appointment of chief medical officer in Municipal Corporation of Mumbai.
! !68
ADMINISTRATION
6.1.2. Printing of self photograph, or any such material of publicity in the
letter head or on signboard of the consulting room or any such clinical
establishment shall be regarded as acts of self advertisement and unethical
conduct on the part of the physician, it is not advisable to print doctors
photograph on his visiting card & So on . However, printing of sketches,
diagrams, picture of human system shall not be treated as unethical, for
example printing sketch of ear, in the visiting card of an ENT surgeon.
6.2. Patent and Copy rights: A physician may patent surgical

instruments, appliances and medicine or Copyright applications, methods
and procedures like many instruments are named in memory of renowned
surgeons and physicians such as Shriodkar's clamp used in obstetric
surgery, Ramdets surgery done for intestinal obstruction, Pun dare's
cervicopexy, Blumenthal surgery , done for cataract patients. . However, it
shall be unethical if the benefits of such patents or copyrights are not made
available in situations where the interest of large population is involved.
6.3. Running an open shop (Dispensing of Drugs and Appliances by

Physicians): Physician should not run an open shop for sale of medicine
for dispensing prescriptions prescribed by doctors other than him or for
sale of medical or surgical appliances. It is not unethical for a physician to
prescribe or supply drugs, remedies or appliances as long as there is no
exploitation of the patient. Drugs prescribed by a physician or brought from
the market for a patient should explicitly state the proprietary formulae as
well as generic name of the drug.
6.4. Rebates and Commission:
6.4.1. A physician shall not give, solicit, or receive nor shall he offer to
give solicit or receive, any gift, gratuity, commission or bonus in
consideration of or return for the referring, recommending or procuring of
any patient for medical, surgical or other treatment. A physician shall not
directly or indirectly, participate in or be a party to act of division,
transference, assignment, subordination, rebating, splitting or refunding of
any fee for medical, surgical or other treatment. If such type of
commission is practiced, in the noble profession such in the medical field, it
should be discouraged as it will bring the bad name to this profession.
6.4.2. Provisions of para 6.4.1 shall apply with equal force to the referring,
recommending or procuring by a physician or any person, specimen or
! !69
ADMINISTRATION
material for diagnostic purposes or other study / work. Nothing in this
section, however, shall prohibit payment of salaries by a qualified physician
to other duly qualified person rendering medical care under his supervision.
It is common practice to gift doctors with new and latest diagnostic tool,
for giving favors to a particular drug company or referring all patients to
particular diagnostic centers for radiological tests such as MRI scans,
C.T.scan, PET scan etc which should be labeled as unethical and should be
discouraged.
6.5. Secret Remedies: The prescribing or dispensing by a physician of

secret remedial agents of which he does not know the composition, or the
manufacture or promotion of their use is unethical and as such prohibited.
All the drugs prescribed by a physician should always carry a proprietary
formula and clear name. History also reveals, how Caesar's brother
maintain the secrecy of lower segment surgical section (LSCS), done for
easy delivery of fetus during labor.
6.6. Human Rights: The physician shall not aid or abet torture nor shall
he be a party to either infliction of mental or physical trauma or
concealment of torture inflicted by some other person or agency in clear
violation of human rights. So no doctors should be forced to favor's or
promote unethical practice in medicine.
6.7. Euthanasia: Practicing euthanasia shall constitute unethical conduct.

However on specific occasion, the question of withdrawing supporting
devices to sustain cardiopulmonary function even after brain death, shall
be decided only by a team of doctors and not merely by the treating
physician alone. A team of doctors shall declare withdrawal of support
system i.e. artificial life support/ ventilator support. Such team shall
consist of the doctor in charge of the patient, Chief Medical Officer /
Medical Officer in charge of the hospital and a doctor nominated by the in-
charge of the hospital from the hospital staff or in accordance with the
provisions of the Transplantation of Human Organ Act, 1994.In such type
of patients , important organs can be removed such as liver, kidney, skin,
etc which can be transplanted on the other needy patients , but such type
of patient should not suffer from HIV, HBSAg, a case poisoning etc.
! !70
ADMINISTRATION
AMENDMENT
The Clause No. 6.8, as under, is included in terms of Notification

published on 4.12.2009 in Gazette of India.
"6.8 Code of conduct for doctors and professional association of

doctors in their relationship with pharmaceutical and allied health
sector industry.
6.8.1 In dealing with Pharmaceutical and allied health sector

industry, a medical practitioner shall follow and adhere to the
stipulations given below:-
a. Gifts: A medical practitioner shall not receive any gift from any
pharmaceutical or allied health care industry and their sales
people or representatives.
b. Travel facilities: A medical practitioner shall not accept any

travel facility inside the country or outside, including rail, air,
ship , cruise tickets, paid vacations etc. from any pharmaceutical
or allied healthcare industry or their representatives for self and
family members for vacation or for attending conferences,
seminars, workshops, CME programme etc as a delegate.
c. Hospitality: A medical practitioner shall not accept individually

any hospitality like hotel accommodation for self and family
members under any pretext.
d. Cash or monetary grants: A medical practitioner shall not receive

any cash or monetary grants from any pharmaceutical and allied
healthcare industry for individual purpose in individual capacity
under any pretext. Funding for medical research, study etc. can
only be received through approved institutions by modalities laid
down by law / rules / guidelines adopted by such approved
institutions, in a transparent manner. It shall always be fully
disclosed.
e. Medical Research: A medical practitioner may carry out,

participate in, and work in research projects funded by
pharmaceutical and allied healthcare industries. A medical
! !71
ADMINISTRATION
practitioner is obliged to know that the fulfillment of the
following items (i) to (vii) will be an imperative for undertaking
any research assignment / project funded by industry - for being
proper and ethical. Thus, in accepting such a position a medical
practitioner shall:-
i) Ensure that the particular research proposal(s) has the due

permission from the competent concerned authorities.
ii) Ensure that such a research project(s) has the clearance of

national/ state / institutional ethics committees / bodies.
iii)Ensure that it fulfils all the legal requirements prescribed for

medical research.
iv)Ensure that the source and amount of funding is publicly

disclosed at the beginning itself.
v) Ensure that proper care and facilities are provided to human

volunteers, if they are necessary for the research project(s).
vi)Ensure that undue animal experimentations are not done and

when these are necessary they are done in a scientific and a
humane way.
vii)Ensure that while accepting such an assignment a medical

practitioner shall have the freedom to publish the results of
the research in the greater interest of the society by inserting
such a clause in the MOU or any other document / agreement
for any such assignment.
f. M a i n t a i n i n g P r o f e s s i o n a l A u t o n o m y : I n d e a l i n g w i t h
pharmaceutical and allied healthcare industry a medical
practitioner shall always ensure that there shall never be any
compromise either with his / her own professional autonomy
and / or with the autonomy and freedom of the medical
institution.
g. Affiliation: A medical practitioner may work for pharmaceutical

and allied healthcare industries in advisory capacities, as
! !72
ADMINISTRATION
consultants, as researchers, as treating doctors or in any other
professional capacity. In doing so, a medical practitioner shall
always:
i) Ensure that his professional integrity and freedom are

maintained.
ii) Ensure that patient's interest is not compromised in any way.
iii)Ensure that such affiliations are within the law.
iv)Ensure that such affiliations / employments are fully

transparent and disclosed.
h. Endorsement: A medical practitioner shall not endorse any drug

or product of the industry publically. Any study conducted on the
efficacy or otherwise of such products shall be presented to
and / or through appropriate scientific bodies or published in
appropriate scientific journals in a proper way".
CHAPTER 7
7. MISCONDUCT: The following acts of commission or omission on the

part of a physician shall constitute professional misconduct rendering him/
her liable for disciplinary action
7.1. Violation of the Regulations: If he/she commits any violation of these

Regulations.
7.2. If he/she does not maintain the medical records of his/her indoor
patients for a period of three years as per regulation 1.3 and refuses to
provide the same within 72 hours when the patient or his/her authorized
representative makes a request for it as per the regulation 1.3.2.
7.3. If he/she does not display the registration number accorded to him/
her by the State Medical Council or the Medical Council of India in his clinic,
prescriptions and certificates etc. issued by Him or violates the provisions
of regulation 1.4.2.
! !73
ADMINISTRATION
7.4. Adultery or Improper Conduct: Abuse of professional position by
committing adultery or improper conduct with a patient or by maintaining
an improper association with a patient will render a Physician liable for
disciplinary action as provided under the Indian Medical Council Act, 1956
or the concerned State Medical Council Act.
7.5. Conviction by Court of Law: Conviction by a Court of Law for

offences involving moral turpitude / Criminal acts.
7.6. Sex Determination Tests: On no account sex determination test

shall be undertaken with the intent to terminate the life of a female fetus
developing in her mother's womb, unless there are other absolute
indications for termination of pregnancy as specified in the Medical
Termination of Pregnancy Act, 1971. Government is going to curb any
act of termination of pregnancy of normal female fetus amounting to
female feticide which is regarded as professional misconduct on the part of
the physician, by keeping watch on the following
a. Rendering him liable to criminal proceedings as per the provisions of

this Act, if he conducts MTP of normal female fetus
b. Keeping regular check on ultrasonographic centers, so that illegal racket

of sex determination and female infanticide can be prevented.
c. Abortion only in government certified centers, certificate of which the

abortion centers has to display at their main entrance.
d. Abortion by only by the trained medical professional.
7.7. Signing Professional Certificates, Reports and other

Documents: Registered medical practitioners are in certain cases bound
by law to give, or may from time to time be called upon or requested to
give certificates, notification, reports and other documents of similar
character signed by them in their professional capacity for subsequent use
in the courts or for administrative purposes etc. Such documents, among
others, include the ones given at Appendix-4. Any registered practitioner
who is shown to have signed or given under his name and authority any
such certificate, notification, report or document of a similar character
which is untrue, misleading or improper, is liable to have his name deleted
from the Register.
! !74
ADMINISTRATION
7.8. A registered medical practitioner shall not contravene the provisions
of the Drugs and Cosmetics Act and regulations made there under.
Accordingly,
a. Prescribing steroids/ psychotropic drugs when there is no absolute

medical indication;
b. Selling Schedule 'H' & 'L' drugs and poisons to the public except to his
patient; in contravention of the above provisions shall constitute gross
professional misconduct on the part of the physician. Schedule 'H'
drugs cannot be openly sold over counter of the pharmacy stores
and always requires prescription of a doctor.
7.9. Performing or enabling unqualified person to perform an abortion or

any illegal operation for which there is no medical, surgical or psychological
indication.
7.10. A registered medical practitioner shall not issue certificates of

efficiency in modern medicine to unqualified or non-medical person. (Note:
The foregoing does not restrict the proper training and instruction of
bonafide medical students, midwives, dispensers, surgical attendants, or
skilled mechanical and technical assistants and therapy assistants under
the personal supervision of physicians.)
7.11. The precautions, a registered medical practitioner should observe

while addressing the press and media are
a. physician should not give interviews regarding diseases and treatments

which may have the effect of advertising himself or soliciting practices;
b. but is open to write to the lay press under his own name on matters of
public health, hygienic living or to deliver public lectures
c. can give talks on the radio/TV/internet chat for the same purpose and
send announcement of the same to lay press
d. Should always address media, releasing the health bulletin of important

dignitaries admitted in his hospital. It should be always addressed by
public relation officer, appointed by the hospital authorizes, who can
only address the press and media.
! !75
ADMINISTRATION
7.12. An institution run by a physician for a particular purpose such as a

maternity home, nursing home, private hospital, rehabilitation centre or
any type of training institution etc. may be advertised in the lay press, but
such advertisements should not contain anything more than the name of
the institution, type of patients admitted, type of training and other
facilities offered and the fees.
7.13. The following which is considered illegal, with reference to a

physician's name plate
a. Should not write on it anything other than his name, qualifications
obtained from a University
b. The name of or a statutory body, titles and name of his specialty or

super speciality in which he has done his master's ( such as MD / MS or
DM / MCh)
c. Registration number including the name of the State Medical Council

under which registered.
d. It is considered improper to affix a sign-board on a chemist's shop or in

places where he does not reside or work.
7.14. The registered medical practitioner shall not disclose the secrets of a
patient that have been learnt in the exercise of his / her profession except
-
i) In a court of law under orders of the Presiding Judge;
ii) In circumstances where there is a serious and identified risk to a specific

person as in the case of patient detected seropositive (HIV+), then in
such cases it is essential to disclose it to his wife and his children, so
that adequate screening of the entire family members can be carried
out. and / or community - as such diseases due to their tendency of
contangeosity can spread in public community, for example
Tuberculosis, Ebola virus infection, SARS pneumonia etc.
iii) Notifiable diseases such as plague, yellow fever, typhus etc. In case of
communicable / notifiable diseases, concerned public health authorities
should be informed immediately.
! !76
ADMINISTRATION
7.15. The registered medical practitioner shall not refuse on religious
grounds alone to give assistance in or conduct of sterility, birth control,
circumcision and medical termination of Pregnancy when there is medical
indication, unless the medical practitioner feels himself/herself incompetent
to do so. Usually it is seen that in few communities, there is social &
religious custom, in which the male members of the community has to
undergo circumcision, and this seems beneficial to prevent against the
occurrence of penile carcinoma.
7.16. Before performing an operation the physician should obtain in writing

the consent from the husband or wife, parent or guardian in the case of
minor, or the patient himself as the case may be. In an operation which
may result in sterility the consent of both husband and wife is needed This
is usually practiced and if the patient is above 18 years old, patient can
himself give the consent the consent for surgery and in the case of minor &
lunatic, is the parent or their first degree relatives who can give consent for
operation.
7.17. A registered medical practitioner shall not publish photographs or

case reports of his/ her patients without their permission, in any medical or
other journal in a manner by which their identity could be made out. If the
identity is not to be disclosed, the consent is not needed. Usually there is
trend, in which hospital authorities put notice in leading news paper before
destroying the medical records.
7.18. In the case of running of a nursing home by a physician and

employing assistants to help Him / her, the ultimate responsibility rests on
the physician.
7.19. A Physician shall not use touts or agents for procuring patients.
7.20. A Physician shall not claim to be specialist unless he has a special

qualification in that branch.
7.21. No act of in vitro fertilization or artificial insemination shall be

undertaken without the informed consent of the female patient and her
spouse as well as the donor. Such consent shall be obtained in writing only
after the patient is provided, at her own level of comprehension, with
sufficient information about the purpose, methods, risks, inconveniences,
disappointments of the procedure and possible risks and hazards.
! !77
ADMINISTRATION
7.22. Research: Clinical drug trials or other research involving patients or
volunteers as per the guidelines of ICMR can be undertaken, provided
ethical considerations are borne in mind. Violation of existing ICMR
guidelines in this regard shall constitute misconduct. Consent taken from
the patient for trial of drug or therapy which is not as per the guidelines
shall also be construed as misconduct.
Amendment
The following Clause No. 7.23 & 7.24 are deleted in terms of
Notification published on 22.02.2003 in Gazette of India.
7.23. If a physician posted in rural area such as in primary health centers

or in a rural hospital, is found absent on more than two occasions during
inspection by the Head of the District Health Authority or the Chairman,
Zila Parishad, the same shall be construed as a misconduct if it is
recommended to the Medical Council of India/State Medical Council by the
State Government for action under these Regulations.
7.24. If a physician posted in a medical college/institution both as teaching

faculty or otherwise shall remain in hospital/college during the assigned
duty hours. If they are found absent on more than two occasions during
this period, the same shall be construed as misconduct if it is certified by
the Principal/Medical Superintendent and forwarded through the State
Government to Medical Council of India/State Medical Council for action
under these Regulations.
CHAPTER 8
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1. It must be clearly understood that the instances of offences and of

Professional misconduct which are given above do not constitute and are
not intended to constitute a complete list of the infamous acts which calls
for disciplinary action, and that by issuing this notice the Medical Council of
India and or State Medical Councils are in no way precluded from
considering and dealing with any other form of professional misconduct on
the part of a registered practitioner. Circumstances may and do arise from
time to time in relation to which there may occur questions of professional
misconduct which do not come within any of these categories. Every care
! !78
ADMINISTRATION
should be taken that the code is not violated in letter or spirit. In such
instances as in all others, the Medical Council of India and/or State Medical
Councils have to consider and decide upon the facts brought before the
Medical Council of India and/or State Medical Councils.
8.2. If a complaint is lodged against a registered medical practitioner, then

how is the action taken against him to prove a case of professional
misconduct
a. Any complaint with regard to professional misconduct can be brought

before the appropriate Medical Council for Disciplinary action.
b. Upon receipt of any complaint of professional misconduct, the

appropriate Medical Council would hold an enquiry
c. Give opportunity to the registered medical practitioner to be heard in

person or by pleader.
d. If the medical practitioner is found to be guilty of committing

professional misconduct, the appropriate Medical Council may award
such punishment as deemed necessary
e. Or may direct the removal altogether or for a specified period, from the
register of the name of the delinquent registered practitioner.
f. Deletion from the Register shall be widely publicized in local press as

well as in the publications of different Medical Associations/ Societies/
Bodies.
8.3. In case the punishment of removal from the register is for a limited
period, the appropriate Council may also direct that the name so removed
shall be restored in the register after the expiry of the period for which the
name was ordered to be removed.
8.4. Decision on complaint against delinquent physician shall be taken

state medical council, or medical council of India within a time limit of 6
months.
! !79
ADMINISTRATION
8.5. During the pendency of the complaint the appropriate Council may
restrain the physician from performing the procedure or practice which is
under scrutiny.
8.6. Professional incompetence shall be judged by peer group as per

guidelines prescribed by Medical Council of India.
Amendments
8.7. The following Clause No. 8.7 & 8.8 are included in terms of
Notification published on 27.05.2004 in Gazette of India.
"8.7 Where either on a request or otherwise the Medical Council of

India is informed that any complaint against a delinquent physician
has not been decided by a State Medical Council within a period of
six months from the date of receipt of complaint by it and further
the MCI has reason to believe that there is no justified reason for
not deciding the complaint within the said prescribed period, the
Medical Council of India may-
(I)impress upon the concerned State Medical council to conclude

and decide the complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the
concerned State Medical Council straightaway or after the expiry of
the period which had been stipulated by the MCI in accordance
with para(i) above, to itself and refer the same to the Ethical
Committee of the Council for its expeditious disposal in a period of
not more than six months from the receipt of the complaint in the
office of the Medical Council of India."
"8.8 Any person aggrieved by the decision of the State Medical

Council on any complaint against a delinquent physician, shall have
the right to file an appeal to the MCI within a period of 60 days
from the date of receipt of the order passed by the said Medical
Council:
Provided that the MCI may, if it is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal within
! !80
ADMINISTRATION
the aforesaid period of 60 days, allow it to be presented within a
further period of 60 days.
APPENDIX - 1
A. DECLARATION
At the time of registration, each applicant shall be given a copy of the
following declaration by the Registrar concerned and the applicant shall
read and agree to abide by the same:
1. I solemnly pledge myself to consecrate my life to service of humanity.
2. Even under threat, I will not use my medical knowledge contrary to the
laws of Humanity.
3. I will maintain the utmost respect for human life from the time of
conception.
4. I will not permit considerations of religion, nationality, race, party

politics or social standing to intervene between my duty and my patient.
5. I will practice my profession with conscience and dignity.
6. The health of my patient will be my first consideration.
7. I will respect the secrets which are confined in me.
8. I will give to my teachers the respect and gratitude which is their due.
9. I will maintain by all means in my power, the honour and noble

traditions of medical profession.
10.I will treat my colleagues with all respect and dignity.
11.I shall abide by the code of medical ethics as enunciated in the Indian
Medical
Council (Professional Conduct, Etiquette and Ethics) Regulations 2002. I

make these promises solemnly, freely and upon my honour.
! !81
ADMINISTRATION
Signature …………………………………………
Name …………………………………………
Place …………………………………………
Address ………………………………………..
………………………………………………
………………………………………………
Date …………………
APPENDIX - 2
1. FORM OF CERTIFICATE RECOMMENDED FOR LEAVE OR

EXTENSION OR COMMUNICATION OF LEAVE AND FOR FITNESS
Signature of patient
or thumb impression______________
To be filled in by the applicant in the presence of the Government Medical

Attendant, or Medical Practitioner.
Identification marks:-
1. ____________
2. ____________
I, Dr.________ after careful examination of the case certify hereby that

_______________ whose signature is given above is suffering from
__________________ and I consider that a period of absence from
duty of ______________ with effect from is absolutely necessary
for the restoration of his health.
I, Dr. after careful examination of the case certify hereby that _

on restoration of health is now fit to join service.
Place
Signature of Medical attendant. __________
Date __________
Registration No. _______
(Medical Council of India / State Medical Council of ……….....…. State)
! !82
ADMINISTRATION
Note:- The nature and probable duration of the illness should also be
specified . This certificate must be accompanied by a brief resume of the
case giving the nature of the illness, its symptoms, causes and duration.
APPENDIX-3
FORMAT FOR MEDICAL RECORD (see regulation 3.1)

Name of the patient :
Age :
Sex :
Address :
Occupation :
Date of 1st visit :
Clinical note (summary) of the case :
Prov. :
Diagnosis :
Investigations advised with reports :
Diagnosis after investigation : Advice :
Follow up :
Date:
Observations:
Signature in full ………………………….
Name of Treating Physician
APPENDIX -4
LIST OF CERTIFICATES, REPORTS, NOTIFICATIONS ETC. ISSUED BY

DOCTORS FOR THE PURPOSES OF VARIOUS ACTS /
ADMINISTRATIVE REQUIREMENTS
a. Under the acts relating to birth, death or disposal of the dead.

b. Under the Acts relating to Lunacy and Mental Deficiency and under the
Mental illness Act and the rules made there under.
c. Under the Vaccination Acts and the regulations made there under.
d. Under the Factory Acts and the regulations made there under.
e. Under the Education Acts.
f. Under the Public Health Acts and the orders made there under.
g. Under the Workmen's Compensation Act and Persons with Disability Act.
h. Under the Acts and orders relating to the notification of infectious
diseases.
! !83
ADMINISTRATION
i. Under the Employee's State Insurance Act.
j. In connection with sick benefit insurance and friendly societies.
k. Under the Merchant Shipping Act.
l. For procuring / issuing of passports.
m. For excusing attendance in courts of Justice, in public services, in public
offices or in ordinary employment.
n. In connection with Civil and Military matters.
o. In connection with matters under the control of Department of Pensions.
p. In connection with quarantine rules.
q. For procuring driving licence.
*****************************************************
Foot Note: The Principal Regulations namely, "Indian Medical Council

(Professional Conduct, Etiquette and Ethics) Regulations, 2002" were
published in Part - III, Section (4) of the Gazette of India on the 6th April,
2002, and amended vide MCI notifications dated 22/02/2003, 26/05/2004
& 14.12.2009.
! !84
ADMINISTRATION
Summary:
The Constitution of India which adopted by the Constituent Assembly on

the 26th November 1949, came into force on the 26th January 1950. Even
though health, as a sector, does not appear in many places of the Indian
Constitution, there are indirect and tacit references to health of the people
and the role the state has to play in the development of health of the
people. Provision No. 16, under the Fundamental Rights refers to equality
of opportunity for all citizens in matters relating to employment or
appointment to any state-run health care institutions.
The Constitution also refers to the preservation and improvement of

healthy environment which is so crucial for the improvement of health
status of all living beings. Under the State List, there are direct references
to the provisions of health Care facilities. For example, Clause No.6 under
the State List refers to public health and sanitation, hospitals and
dispensaries.
Indian Penal Code (IPC) is the main criminal code of India. It is a

comprehensive code intended to cover all substantive aspects of criminal
law. The Indian Penal Code of 1860, sub-divided into twenty three
chapters, comprises five hundred and eleven sections.
Section 377 had been interpreted to suppress the rights of sexual

minorities in India. This section has been termed as the biggest hurdle in
dealing with control of AIDS in the country.
Civil procedure applies to the process where two parties bring a case to the
court for a decision on a particular matter. These matters can include
divorces, estate distribution, injury cases, or even matters such as
discrimination in the workplace .Where as Criminal procedure applies to the
process where the state or federal government is arresting and trying
someone for a crime that was committed.
The Indian Evidence Act and introduced a standard set of law applicable
to all Indians. The Indian Evidence Act, identified as Act no. 1 of 1872, and
called the Indian Evidence Act, 1872, has eleven chapters and 167
sections, and came into force 1 September 1872.
! !85
ADMINISTRATION
Police Act is a stock short title used for legislation in India, Malaysia and
in England and Wales relating to police forces and officers. In India, police
act came into force in 1861. A death in custody is a death of a person in
the custody of the police, prison service or other authorities.
Every human being enjoys fundamental human rights without any

discrimination. Article 21 of the Indian constitution provides guaranteed
right of life and personal liberty to every citizen including the right to
health and the conditions that are essential for health.
The Indian Judiciary is partly a continuation of the British legal system

established by the British in the mid-19th century based on a typical hybrid
legal system known as the Common Law System, in which customs,
precedents and legislative are all components of the law. Courts in India
are Supreme Court of India , High courts , District courts , Village courts.
The E-courts project was established in the year 2005. According to the
project, all the courts including taluk courts will get computerized. As per
the project in 2008, all the District courts were initialized under the project.
In 2010, all the District court were computerized.
The Medical Council of India was established in 1934 under the Indian
Medical Council Act, 1933, now repealed with the main function of
establishing uniform standards of higher qualifications in medicine and
recognition of medical qualifications in India and aboard.
The objectives of the Council are Maintenance of uniform standards of

medical education, both undergraduate and postgraduate,
Recommendation for recognition / de-recognition of medical qualifications
of medical institutions of India or foreign countries, Permanent
registration / provisional registration of doctors with recognized medical
qualifications, Reciprocity with foreign countries in the matter of mutual
recognition of medical qualifications.
It is important to note that Medical Council of India does not deal with
Registration, duties and responsibilities of Paramedical personnel, Dental
Surgeons and practice of Indian systems of Medicine like Ayurveda,
Siddha, Unani and Homeopathy.
! !86
ADMINISTRATION
The Dental Council of India is constituted by an act of parliament 'The
Dentists Act 1948' (XVI of 1948) with a view to regulate the dental
education, dental profession and dental ethics thereto-which came into
existence in March, 1949.
The objectives of the Council are Maintenance of uniform standards of

Dental Education both at Undergraduate and Postgraduate levels, To
prescribe the standard curricula for the training of dentists, dental
hygienists, dental mechanics; To prescribe the standards of examinations
and other requirements to be satisfied to secure for qualifications
recognition under the Act.
The Pharmacy Council of India was constituted on 09.08.1949 under

section 3 of the Pharmacy Act. The Pharmacy Act 1948 was enacted on
04.03.1948 with the objective to regulate the profession of pharmacy.
The objective of the Council are Regulation of the Pharmacy Education in

the Country for the purpose of registration as a pharmacist under the
Pharmacy .
The Indian Nursing Council is an Autonomous Body under the

Government of Indian, Ministry of health & family welfare was constituted
by the Central Government under section 3(1) of the Indian nursing
Council Act, 1947 of parliament in order to establish a uniform standard of
training for nurses, midwives and health visitors.
The central council of Homoeopathy is constituted by the Central

Government under section 3(1) of the Homoeopathy Central Council Act,
1973 of parliament. The main function of the Central Council of
Homoeopathy is to evolve uniform standards of education in Homoeopathy
and the registration of practitioners of Homoeopathy.
The Central Council of Indian Medicine is the statutory body

constituted under the Indian Medicine Central Council Act, 1970 vide
gazette notification extraordinary part (i) section 3 (ii) dated 10.8.1971.
The Central Council was reconstituted in 1984 & 1995.
In exercise of the powers conferred under section 20A read with section
33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical
Council of India, with the previous approval of the Central Government,
! !87
ADMINISTRATION
hereby makes the following regulations relating to the Professional
Conduct, Etiquette and Ethics for registered medical practitioners, namely:-
Short Title and Commencement: (1) These Regulations may be called

the Indian Medical Council (Professional conduct, Etiquette and Ethics)
Regulations, 2002. (2)They shall come into force on the date of their
publication in the Official Gazette.
The prime object of the medical profession is to render service to

humanity; reward or financial gain is a subordinate consideration. Who- so-
ever chooses his profession, assumes the obligation to conduct himself in
accordance with its ideals. The Principal objective of the medical profession
is to render service to humanity with full respect for the dignity of
profession and man. Every physician shall maintain the medical records
pertaining to his / her indoor patients for a period of 3 years from the date
of commencement of the treatment in a standard proforma. Every
physician shall display the registration number accorded to him by the
State Medical Council / Medical Council of India in his clinic and in all his
prescriptions, certificates, money receipts given to his patients.
The physician should neither exaggerate nor minimize the gravity of a

patient's condition. A physician shall clearly display his fees and other
charges on the board of his chamber and/ or the hospitals he is visiting.
Prescription should also make clear if the Physician himself dispensed any
medicine. Physicians, as good citizens, possessed of special training should
disseminate advice on public health issues. Practicing euthanasia shall
constitute unethical conduct.
A medical practitioner shall not receive any gift from any pharmaceutical or
allied health care industry and their sales people or representatives. A
medical practitioner shall not receive any cash or monetary grants from
any pharmaceutical and allied healthcare industry for individual purpose in
individual capacity under any pretext. On no account sex determination
test shall be undertaken with the intent to terminate the life of a female
foetus developing in her mother's womb, unless there are other absolute
indications for termination of pregnancy as specified in the Medical
Termination of Pregnancy Act, 1971.
The registered medical practitioner shall not disclose the secrets of a

patient that have been learnt in the exercise of his / her profession except
! !88
ADMINISTRATION
in a court of law under orders of the Presiding Judge; in circumstances
where there is a serious and identified risk to a specific person and / or
community; and notifiable diseases. In case of communicable / notifiable
diseases, concerned public health authorities should be informed
immediately.
Review Questions:
1. What do you mean by civil and criminal procedures. What are the
main difference between civil and criminal procedures.
2. Explain the hierarchy system in Indian judiciary system
3. What are the functions and objective of Indian Medical Council
4. What is Central Council of Indian Medicine (CCIM) and what are the
functions of this council 
! !89
ADMINISTRATION
REFERENCE MATERIAL
Click on the links below to view additional reference material for this
chapter
Summary
PPT
MCQ
Video Lecture - Part 1
Video Lecture - Part 3 
! !90
LAWS PERTAINING TO HEALTH
Chapter 2
Laws pertaining to Health
2.1 MTP Act ,1971
2.2 Central Birth and Death Registration Act 1969
2.3 Essential Marriage Act
2.4 Mental Health Act, 1987
2.5 Infant milk substitutes, feeding bottle and infant food act ,1992
2.6 The Food, Safety and Standards Act, 2005
! !91
2.1 MEDICAL TERMINATION OF PREGNANCY ACT, 1971
The Medical Termination of Pregnancy (MTP) Act, 1971 lies down:
1. The conditions under which a pregnancy can be terminated.
2. The person or person who can perform such terminations, and the place
where such terminations can be performed.
The conditions under which a pregnancy can be terminated under MTP Act
1971: There are 5 conditions that have been identified in the Act:
1. Medical: Where continuation of the pregnancy might endanger the

mother's life or cause grave injury to her physical or mental health.
2. Eugenic: Where there is substantial risk of the child being born with
serious handicaps due to physical or mental abnormalities.
3. Humanitarian: Where pregnancy is the result of rape.
4. S o c i o - e c o n o m i c : W h e r e a c t u a l o r r e a s o n a b l y f o r e s e e a b l e
environments (whether social or economic) could lead to risk of injury
to the health of the mother.
5. Failure of contraceptive devices: The anguish caused by an

unwanted pregnancy resulting from a failure of any contraceptive device
or method can be presumed to constitute a grace mental injury to the
health of the mother. The condition is a unique feature of the Indian Law
and virtually allows abortion on request, in view of the difficulty of
proving that a pregnancy was not caused by failure of contraception.
The written consent of the guardian is necessary before performing

abortion in women Under 18 years of age, and in lunatics even if they are
older than 18 years.
! !92
The Person (s) who can Perform Abortion
The Act provides Medical Practitioner having experience in gynecology and

obstetrics to perform abortion where the length of pregnancy does not
exceed 12 weeks. However, where the pregnancy exceeds 12 weeks and is
not more than 20 weeks the opinion of two Registered Medical Practitioners
is necessary to terminate the pregnancy.
Where abortion can be done: The Act stipulates that no termination of

pregnancy shall be made at any place other than a hospital established or
maintained by Government or a place approved for the purpose of this Act
by Government.
Abortion services are provided in hospital in strict confidence. The name of

the abortion seeker is kept confidential, since abortion has been treated as
a statutory personal matter.
MTP Rules (1975): Rules and Regulations framed initially were altered in
October 1975 to eliminate time-consuming procedures involved in MTP and
to make services more readily available. These changes have occurred in 3
administrative areas.
Approval by Board:
Under the new rules, the Chief Medical Officer of the district is empowered
to certify that a doctor has the necessary training in gynecology and
obstetrics to do abortions. The procedure of doctors applying to
Certification Boards was removed.
Qualification of Perform Abortion:

The new rules allow for registered medical practitioners to qualify through
on the spot training:
"If he has assisted a RMP in the performance of 25 cases of medical

termination of pregnancy in an approved institution”.
The doctor may also qualify to do MTP's under the new rules if he has one
or more of the following qualifications which are similar to the old rules: ?
a. 6 months horsemanship in obstetrics and gynecology (OBG)
! !93
b. a post-graduate qualification of OBG
c. 3 years of practice in OBG for those doctors registered before the 1971
MTP Act was passed.
d. 1 year of practice in OBG for those doctors registered on or after the

date of commencement of the Act.
The Place where Abortion is performed:

Under the new rules, non-governmental institutions may also take up
abortions provided they obtain a license from the Chief Medical Officer of
the district, thus eliminating the requirement of private clinics obtaining a
Board License.
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT,

2002
No. 64 of 2002
[18th December, 2002]
An Act to amend the Medical Termination of Pregnancy Act, 1971. Be it

enacted by Parliament in the Fifty-third Year of the Republic of India as
follows:-
1. Short title and commencement:
1) This Act may be called the Medical Termination of Pregnancy

(Amendment) Act, 2002.
2) It shall come into force on such dates as the Central Government

may by notification in the Official Gazette, appoint.
2. Amendment of Section 2:
In section 2 of the Medical Termination of Pregnancy Act, 1971 (herein

referred to as the principal Act),-
i. in clause (a), for the word "lunatic", is replaced by the word''mentally ill
person" shall be substituted;
ii. for clause (b), the meaning of the word mentally ill person means:-
! !94
b. "mentally ill person" means a person who is need of treatment by

reason of any mental disorder other than mental retardation:'
3. Amendment of Section 3:
In section 3 of the principal Act, in sub -section (4), in clause (a), for the
word "lunatic", the words "mentally ill person" shall be substituted.
4. Substitution of new Section of Section 4:
For section 4 of the principal Act, the following section shall be substituted,
namely:-
"4. No termination of pregnancy shall be made in accordance
With this Act at any place other than-
a. A hospital established or maintained by Government or
b. a place for the time being approved for the purpose of this Act by
Government or a District Level Committee constituted by that
Government with the Chief Medical Officer or District Health Officer as
the Chairperson -of the said Committee:
c. The District Level Committee shall consist of not less than three and not
more than five members including the Chairperson, as the Government
may specify from time to time." -
Amendment of Section 5
5. In section 5 of the principal Act, for sub-section (2) and the explanation
thereto the following shall be substituted, namely:-
2. Notwithstanding anything contained in the Indian Penal Code (45 of

1860), the termination of pregnancy by a person who is not registered
medical practitioner shall be an offense punishable with rigorous
imprisonment for a term, which was initially, for two years of rigorous
punishment, has now been extended to seven years under that Code,
and that Code shall to this extent, stand modified.
! !95
3. Whoever terminates any pregnancy in a place other than that

mentioned in section 4 shall be punishable with rigorous imprisonment
for a term which shall not be less than two years but which may extend
to seven years. ,
4. Any person being owner of a place which is not approved under clause
(b) of section 4 shall be punishable with rigorous imprisonment for a
term which shall not be less that two years but which may extend to
seven years.
Explanation 1 - For the purpose of this section, the expression "owner"

in relation to a place means any person who is the administrative head
or otherwise responsible for the working or maintenance of a hospital or
place, by whatever name called, where
The pregnancy may be terminated under this Act.
Explanation 2- For the purpose of this section, so much of the

provisions of clause (d) of section 2 as relate to the possession, by
registered medical practitioner, of experience or training in gynecology
and obstetrics shall not apply.
SUBHASH C. JAIN
Secy. to the Govt. of India
Therefore the main features of amendments of MTP Act 2002 includes
A. The replacement of the word '' lunatic '' by the word ''mentally ill
person''
B. The definition of the word of the ''mentally ill person ''. It is defined as a
person who is need of treatment by reason of any mental disorder other
than mental retardation
C. the termination of pregnancy by a person who is not registered medical

practitioner shall be an offence punishable with rigorous imprisonment
for a term, which was initially, for two years of rigorous punishment, has
now been extended to seven years
! !96
2.2 CENTRAL BIRTHS AND DEATHS REGISTRATION ACT,

1969
The Central Births and Deaths Registration Act were promulgated by the
Government of India in 1969. The Act came into force on 1st April 1970.
The objective of the Act is to improve the Civil Registration System.
The Act provides for compulsory registration of births and deaths

thought the Country and compilation of vital statistics in the states so as
to ensure uniformity and comparability of data. The implementation of the
Act required adoption of rules for which also, model guidelines have been
provided. The Act also fixes the responsibility for reporting births and
deaths. While the public (e.g. parents, relatives, heads of hospitals,
nursing homes, hotels, jails or dharmashalas) are to report events
occurring in such institutions to the Registrar concerned. The time limit for
registering the event of births is 14 days and that of deaths is 7 days. The
Act makes the beginning of the new era in the history of vital statistics
registration in India.
Death certificate will be issued by medical practitioner ?
a. If the medical officer has had that person under his treatment, and has
seen him not earlier than 1 week before death
b. is certain at the time of death that was natural,
c. He had died from the disease he was treating; he may issue a death
certificate, provided he has seen the deceased during his terminal
stages or after death,
d. has excluded foul play.
If in doubt, however, the death certificate should not be issued.
Death certificate are issued as per the standards of "International

classification of diseases and cause of death", published by WHO should be
addressed to for various causes of death.
These includes
! !97
a. Immediate cause of death, and
b. Resulting from previous morbid conditions resulting the above death
c. Other non-related significant diseases which directly did not result in but
had a role to play in the morbidity / mortality.
The present average level for registration of births in the county is about
50 per cent and of deaths about 45 per cent. According to the Office of the
Registrar-General of India, the purpose of this intensive publicity drive is to
achieve a goal of 100 per cent registration of death and birth.
In India too, a massive publicity campaign is being launched by the Office

of the Registrar- General of India to educate people about the importance
and the necessity of timely registration of births and deaths. The massive
publicity campaigns are being done through radio, television, documentary
films, and cinema slides to carry the message of the importance of the
birth and death registration.
2.5 THE INFANT MILK SUBSTITUTES, FEEDING BOTTLES

AND INFANT FOOD
(Regulation of Production, Supply and Distribution) Act, 1992
The Government of India enacted The Infant Milk Substitutes, Feeding

Bottles and Infant Food (Regulation of Production, Supply and Distribution)
Act, 1992. This Act came into effect from 1st August 1993. The main aim
of this Act is to protect and promote breast-feeding and to ensure proper
use of infant foods. It also aims to regulate the production, supply and
distribution of infant milk substitutes and feeding bottles. The Infant Milk
Substitutes, Feeding Bottles and Infant Food (Regulation of Production,
Supply and Distribution) Act, 1992, prohibits all sorts of advertising to
create an impression or belief that feeding infant milk substitutes is
equivalent to or better than mother's milk or to promote the use of an sale
of infant milk substitutes or feeding bottles against the provisions of the
Act.
Under this Act, no person is entitled to use any health care system for the
display of placards or posters relating to, or for the distribution or materials
for the purpose of promoting the use of sale of infant milk substitutes or
! !98
feeding bottles or infant feed. No person who produces, supplies,

distributes or sells infant milk substitutes or feeding bottles or infant foods,
entitled to make any payment to any person who works in the health care
system for the purpose of promoting the use or sale of such substitutes or
bottles or foods.
The officer authorized by the State Government under Section 12 of the

The Infant Milk Substitutes, Feeding Bottles and Infant Food Act, 1992
a. A medical officer in charge of the health administration of a local area;

or
b. A graduate in medicine and
c. Has received at least one month's training in food inspection and

sampling work approved for the purpose of food inspection under the
Prevention of Food Adulteration Act, 1954.
The information, besides the information specified in Clause (a) to (f) sub-
section (1) of Section 7 would be included in every educational or other
material, whether audio or visual dealing with pre-natal care of with the
feeding of an infant and intended to reach pregnant women and mothers of
infants should include: ?
A. The following details of advantages, as also nutritional superiority of

breast feeding :
i. Immediately after delivery, breast milk is yellowish and sticky. This milk
is called colostrums, which is secreted during the first week of delivery.
Colostrums, is more nutritious than that of mature milk because it
contains more protein, more anti-infective properties which are of a
great importance for the infant's defense against dangerous neonatal
infections. It also contains higher levels of Vitamin 'A'.
ii. Breast milk -its advantages
• Is a complete and balanced food and provides all the nutrients needed
by the infant in the first few months of its birth;
! !99
• Has anti-infective properties that protect the infant from infection in

the early moths;
• Is always available;
• Needs no utensils or water (which night carry germs) or fuel for its
preparation.
iii. Breast feeding is much cheaper than feeding infant milk substitute as
the cost of the extra food needed by the mother is negligible compared
to the cost of feeding infant milk substitutes.
iv. Mothers who breast feed usually have longer periods of infertility after
child birth.
B. Details of management of breast feeding, as under :-
i. Breast feeding -
• Immediately after delivery enables the contraction of the womb and

helps the mother to regain her figure quickly.
• Is successful when the infant suckles frequently and the members

wanting to break- feed is confident in her ability to do so.
ii. In order to promote and support beast feeding the mother's natural
desire to breast food should always be encouraged by giving, where
needed, practical advice and making sure that she has the support of
her relatives.
iii. Adequate care for the breast and nipples should be taken during
pregnancy.
iv. It is also necessary to put the infant to the breast as soon as possible
after delivery.
v. Let the mother and the infant stay together after the delivery, the
mother and her infant should be allowed to stay together (in hospital,
this is called rooming in).
! !100
vi. Give the infant colostrums as it is rich in many nutrients and anti-
infective factors protecting the infants from infections during the dew
days of its birth.
vii.The practice of discarding colostrums and giving sugar water, honey

water, butter or other concoctions instead of colostrums should be very
strongly discouraged.
viii.Let the infants suckle on demand.
ix. Every effort should be made to breast feed the infants whenever they
cry.
An offence of not giving breast feeding is punishable under this Act. It is

considered cognizable but billable offence. Section 20 of the, The Infant
Milk Substitutes, Feeding Bottles and Infant Food (Regulation of
Production, Supply and Distribution) Act, 1992 provides for penalty for
violating the provisions of the Act. It may range from six months to three
years of imprisonment and a fine up to Rs. 5,000/-.
2.6 THE FOOD, SAFETY AND STANDARDS ACT, 2005
Objective of the Act:

This Act has been passed to consolidate the laws relating to food and to
establish the Food Safety and Standards Authority of India for laying down
science based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import to ensure availability of
sage and wholesome food for human consumption.
Important Definitions:
Adulterant: means any material which is or could be employed for making

the food unsafe or sub-standard, mis-branded or containing extraneous
matter; for example of adulteration of the milk and milk product,
adulteration of the poppy seeds with dhatura seeds etc.
Advertisement : means any audio or visual publicity, representation or

pronouncement made by means of any light, sound, smoke, gas, print,
electronic media, internet or website and includes through any notice,
! !101
circular, label, wrapper, invoice or other documents; for example of

advertisement of saffola oil, aashirwaad Atta, dabour honey etc.
Contaminant: means any substance, whether or not added to food, but

which is present in such food as a result of the production (including
operations carried out in crop husbandry, animal husbandry or veterinary
medicine), manufacture, processing, preparation, treatment, packing,
packaging, transport or holding of such food or as a result of
environmental contamination and does not include insect fragments,
rodent hairs and other extraneous matter; for example, the presence of
stone particles in rice, presence of worms in the wheat flour etc.
Extraneous matter : means any matter contained in an article of food

which may be carried from the raw materials, packaging materials or
process systems used for its manufacture or which is added to it, but such
matter does not render such article of food unsafe; like presence of sugar
cane fibers in jaggery.
Food : means any substance, whether processed, partially processed on

unprocessed, which is intended for human consumption and includes
primary food, to the extent defined in clause (ZK) genetically modified or
engineered food or food containing such ingredients, infant food, packaged
drinking water, alcoholic drink, chewing gum and any substance, including
water used into the food during its manufacture, preparation or treatment
but does not include any animal feed, live animals unless they are
prepared or processed for placing on the market for human consumption,
plants prior to harvesting, drugs and medicinal products, cosmetics,
narcotic or psychotropic substances and may also include any other article,
if so declared by the Central Government. For examples breads, jams,
pickles, condensed milk, mineral water, etc.
Food additive : means any substance not normally consumed as a food

by itself or used as a typical ingredient of the food, whether or not it has
nutritive value, the international addition of which to food, for a
technological (including organoleptic) purpose in the manufacture,
processing, preparation, treatment, packing, packaging, transport or
holding of such food results or may be reasonably expected to result
(directly or indirectly), in it or its by-products becoming a component of or
otherwise affecting the characteristics of such food but does not include
"contaminants" or substances added to food for maintaining or improving
! !102
qualities; for example artificial sweeteners, edible food color, bourn vita or
protinex powder etc.
Food safety: means assurance that food is acceptable for human

consumption according to its intended use; for example always look for
expiry date of food products.
Label : means any tag, brand, mark, pictorial or other descriptive matter,
written, printed, stenciled, marked, embossed, graphic, perforated
stamped or impressed on or attached to container, cover, lid or crown of
any food package and includes a product insert; for example red label tea.
Sub-standard: an article of food shall be deemed to be sub-standard if it
does not meet the specified standards but not so as to render the article of
food unsafe; for example sub- standards milk product, usually done in
surprise check during diwali.
Important provisions of the Act:
A. The Food Safety and Standards Act is an 'integrated food law', designed
to avoid the previously existing multiplicity of legislation.
It creates a specialized bureaucracy to administer its provisions and

established the Food Safety and Standards, Authority (FSSA) to regulate
the sector and other allied committees. The FSSA would consist of a
Chairperson would be either an eminent food scientists or a civil servant
not below the rank of Secretary. Seven of the members would be
appointed by rotation every three years from the states and Union
Territories. The food Authority would have
A. Two representatives each from the food industry and consumer

organizations,
B. three food technologists,
C. two members from a farmers' organization
D. one from retail organization
E. FSSA will be aided by several scientific panels and a Central Advisory

Committee to lay down standards for food safety. These standards will
! !103
include specifications for ingredients, contaminants, pesticide residue,

biological hazards, labels and others.
F. There is provision for compulsory registration or license for every food

retailer, hawker, itinerant vendor and temporary stall holder under
regulations made by the Act. Temporary stall holders are exempted
from the license but need to get their business registered with the local
municipality or Panchayat.
G. The Act applies to both large and small operators defining a food
business as "any undertaking, whether for profit or not and whether
public or private, carrying out any of the activities related to any stage
of manufacture, processing, packaging, storage, transportation,
distribution of food or import" of food.
H. The law will be enforced through State Commissioners of Food Safety

and local level officials.
I. The Act empowers the FSSA and State Food Safety Authorities to
monitor and regulate the food business operators. The Commissioner of
food Safety or each state appoints a Designated Officer (DO), not below
the level of Sub-Divisional Officer, for a specific district whose duties
include issuing or cancelling licenses, prohibiting sale of food articles
that violate specified standards, receiving report and samples of food
articles from Food Safety Officers and getting them analyzed. The State
Commissioner, on the recommendation of the Designated Officer,
decides whether a case of violation would be referred to a court of
ordinary jurisdiction or to a Special Court.
J. The penalties provided are mostly in the nature of fines and trial by
special courts in case of serious offences. The act provides for a graded
penalty structure where the punishment depends on the severity of the
violation. Offences such as manufacturing, selling, storing or importing
sub-standard or misbranded food could incur a fine. Offences as
manufacturing, distributing, selling or importing unsafe food, which
result in injury, could incur a prison sentences. The sentence could
extend to life imprisonment in case the violation causes death.
According to the Food, Safety and Standards Act, 2005, Petty
manufacturers who make their own food, hawkers, vendors or
! !104
temporary stall holders could be fined up to Rs. 25 thousand if hey

violate the specified standards.
K. According to the Food, Safety and Standards Act, 2005, under Section
69 (power to compound offences),the Designated Officers can impose a
fine of up to Rs. 1 Lakh on petty manufacturers, hawkers, retailers etc.
if they have a "reasonable belief" that an offence has been committed.
L. In order to judge cases related to breach of specified regulations, the

state government has the power to appoint an Adjusting Officer, not
below the rank of Additional District Magistrate. Any person not satisfied
by the decision of an Adjudicating Officer has the right to appeal to the
Food Safety Appellate Tribunal (or to the State Commissioner until the
Tribunal is constituted). The Tribunal enjoys the same powers as a civil
court and decides the penalty in case of non-compliance with the
provisions of the Act.
M. Every distributor is required identify any food article to its manufacturer,

and every seller to its distributor. Anyone in the sector should be able to
initiate recall procedures if he finds that the food sold had violated
specified standards
Procedure for analysis of Food:
On receipt of a package containing a sample for analysis from a Food

Safety Officer or any other person
• the Food Analyst shall compare the seal on the container and the outer
cover with specimen impression received separately
• shall note the conditions of the seal thereon
• If the sample container received by the Food Analyst is found to be in

broken condition or unfit for analysis
• he shall within a period of seven days from the date of receipt of such
sample
• Inform the Designated Officer about the same and send requisition to
him for sending second part of the sample
! !105
• The Food Analyst after conducting the process shall submit his report
indicating the method of sampling and analysis, used
• An appeal can be raised against the report submitted by the Food Analyst
report with or before the Designated Officer who shall, decides about the
result and in the case of doubt or suspicion , can refer the matter to the
referral food laboratory
Offences and Penalties:
• The Food Safety and Standards Act specifies very heavy fines ranging
from Rs 1 lakh to Rs 10 lakh (in clauses 50-65 of the Act) accompanied
with imprisonment, cancellation of license etc.
• The offences are triable by a metropolitan magistrate or a magistrate of

the first class
• The Food Safety and Standards Act specifies very heavy fines ranging
from Rs 1 lakh to Rs 10 lakh (in clauses 50-65 of the Act) accompanied
with imprisonment, cancellation of license etc.
• The offences are triable by a metropolitan magistrate or a magistrate of

the first class
The Adjudicating Officer / Court may also direct the accused / defaulter to
pay compensation to the victim or the legal representative of the victim,
which in case of death may be Rs. Five Lakhs, in case of grievous injury Rs.
Three Lakhs and in all other cases of injury compensation of Rs. 1 lakh. 
! !106
Description of the Offence Punishment
Selling any food, which is not Penalty up to Rs. 2 lakhs

conforming to the Food, Safety and
Standards Act, 2005
Selling any food, which is not in Penalty up to Rs. 2 lakhs

compliance with nature or substance or
quality demanded by the purchaser
Manufacturing for sale / Storing / Sub standard : Penalty up to Rs. Five

Selling / Distributing / Importing any lakhs
food which is sub-standard or Misbranded: Penalty up to Rs.
misbranded or contains extraneous Three lakhs
matter Extraneous Matter: Penalty up to Rs.
One lakh
Misleading Advertisement Penalty up to Rs. 10 lakhs
Non compliance of the standards by a Penalty up to Rs. 2 lakhs

food business operator or importer
without reasonable ground
Manufacturing or processing food Penalty up to Rs. one lakh

under unhygienic or unsanitary
conditions;
Importing or manufacturing for sale or Not injurious - Penalty up to Rs. Two

Storing / Selling/ Distributing any lakhs
injurious / non injurious adulterant Injurious - Penalty up to Rs. Ten lakhs
Manufacturing for sale or Storing / Unsafe - No injury - Imprisonment up

Selling / Distributing/ Importing any to 6 months and Fine up to Rs. 1 lakh.
unsafe food, which when consumed
has not caused any injury or has Unsafe-Non - grievous injury -
resulted in non- grievous injury / Imprisonment up to 1 year and fine up
grievous injury / death. to three lakh rupees.
Unsafe – Grievous injury imprisonment

up to 6 year and fine up to 6 lakh
rupees.
Unsafe – Grievous injury Imprisonment

up to 7 year and fine up to 10 lakh
rupees.
! !107
The Civil Court's jurisdiction has been expressly barred to entertain any
suit or proceeding in respect of any matter which an Adjudicating Officer or
the Tribunal is empowered by or under this Act to determine. The Courts /
any other authority are not empowered to issue any stay order or any
action taken or to be taken in pursuance of any power conferred by on
under this Act.
The Offences under this Act relating to grievous injury or death of the
consumer for which punishment of imprisonment for more than three years
has been prescribed shall be triable by a Special Court. Any persons
aggrieved by a decision or order of a Special Court may prefer an appeal to
the High Court.
It is importantly provided that no court shall take cognizance of an offence

under this Act after the expiry of the period of one year from the date of
commission of an offence. However, the Commissioner of Food Safety may,
for reason to be recorded in writing approve prosecution within an
extended period of up to three years.
Amendments and Repeals:
1. The Prevention of Food Adulteration Act, 1954 (37 of 1954).
2. The Fruit Products Order, 1955.
3. The Meat Food Products Order, 1973.
4. The Vegetable Oil Products (Control) Order, 1947.
5. The Edible Oils Packaging (Regulation) Order, 1998.
6. The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control)
Order, 1967.
7. The Milk and Milk Products Order, 1992.
8. Essential Commodities Act, 1955 (10 of 1955) relating to food.
! !108
Summary:
The Medical Termination of Pregnancy (MTP) Act, 1971 lays down the
conditions under which a pregnancy can be terminated, The person or
person who can perform such terminations, and The place where such
terminations can be performed.
The Act provides Medical Practitioner having experience in gynecology and

obstetrics to perform abortion where the length of pregnancy does not
exceed 12 weeks. However, where the pregnancy exceeds 12 weeks and is
not more than 20 weeks the opinion of two Registered Medical Practitioners
is necessary to terminate the pregnancy.
The Central Births and Deaths Registration Act was promulgated by

the Government of India in 1969. The Act provides for compulsory
registration of births and deaths thought the Country and compilation
of vital statistics in the states so as to ensure uniformity and comparability
of data.
The Government of India enacted The Infant Milk Substitutes, Feeding

Bottles and Infant Food (Regulation of Production, Supply and
Distribution) Act, 1992. The main aim of this Act is to protect and
promote breast-feeding and to ensure proper use of infant foods.
The Food, Safety and Standards Act, 2005 -This Act has been passed
to consolidate the laws relating to food and to establish the Food Safety
and Standards Authority of India.
It creates a specialized bureaucracy to administer its provisions and

established the Food Safety and Standards, Authority (FSSA) to regulate
the sector and other allied committees. The Act empowers the FSSA and
State Food Safety Authorities to monitor and regulate the food business
operators.
The Act contains a provision under Section 69 (power to compound

offences), which empowers Designated Officers to impose and fine of up to
Rs. 1 Lakh on petty manufacturers, hawkers, retailers etc. if they have a
"reasonable belief" that an offence has been committed.
! !109
Review Questions:
1. Explain important features of MTP act with its recent amendments.
2. What are the nutritional advantages of Breast milk.
3. What are the advantages and offences under The Food, Safety and
Standards Act, 2005
! !110
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
! !111
LAWS PERTAINING TO HOSPITALS
Chapter 3
Laws pertaining to Hospitals
3.1 Transplantation of human organ act ,1994
3.2 Prenatal diagnostic technique ( Regulation and prevention of misuse)

Act , 1994
3.3 The Bombay Nursing homes registration act 1949
3.4 Biomedical waste ( Management and handling) rules ,1998
3.5 Trust Act
3.5.1 Registration of Public Trust
3.5.2 Power of charity commission to issue directions to hospital trust
3.5.3 Charitable hospital and legal provision
3.6 Notifiable disease
3.7 National and International Health Care System
3.8 Health care delivery system in India
3.9 National and International Health Programmes
! !112
3.1 TRANSPLANTATION OF HUMAN ORGANS ACT, 1994
With the advancement of science, it has been found that human organs like
kidney, heart, liver, skin, cornea (eye) etc. could be transplanted without
much difficulty. This sort of transplantation was done to save the lives of
those in critical conditions. Human organ such as kidney was usually
donated by a close relative of the patient. Since of late unscrupulous
persons are donating kidney for the sake of money. The transplant racket
is now estimated to amount to Rs. 40 crores a year. This has forced the
government to enact a law to prohibit the sale of kidneys and to punish
those involved in illegal transplantation of human organs. Thus “The
Transplantation of Human Organs Act” came into existence in 1994.
Aim of the Act:
“The Transplantation of Human Organs Act “enacted to provide for
a. the regulation of removal,

b. storage and transplantation of human organs for therapeutic purposes
c. for the prevention of commercial dealings in human organs
DEFINITION:
Donor: An organ donor is any person who is

a. above the age of 18 years
b. who voluntarily authorizes the removal of the organ
c. the removal of his organs is done for therapeutic purpose
Hospital:
A hospital includes a nursing home, clinic, medical centre, medical or
teaching institution functioning for therapeutic, preventive, palliative &
curative.
Human Organ:
The human organ is any part of the human body consisting of a structured
arrangement of tissues which, if fully removed, cannot be replicated by the
body itself.
! !113
Near Relative:
Near relative means the person from whom the organs can be removed
and includes a spouse, son, daughter, father, mother, brother and sister?
Nobody beyond this is to be called a nears relative.
Recipient:
The recipient is the person in whom an organ is proposed to be
transplanted.
Registered Medicals Practitioner:
A registered medical practitioner under the organ transplantation Act is the
a. one who is registered under the Indian Medical Council Act of 1956,
b. meaning an allopath, an MBBS doctor
c. not belonging to any other system of Medicine such as aurveda, unnai,
siddha, homeopathic
Therapeutic:
Therapeutic purpose is systematic treatment of any disease or measures to
improve health according to any particular method or modality.
Transplantation:
Organ Transplantation is grafting of the human organ from any living or
dead person to some other living person for therapeutic purpose.
DONOR CATEGORIES:
The Act clearly places donors into various categories.
• First is the - Live donor means
a. authorizing removal before death , including brain death

b. applies to organs which are bilateral, such as eyes, ears, kidneys etc
c. can be spared, i.e. their removal does have any contraindication for
its removal such as a case of poisoning, sero-positive patient's- HIV 1
& 2etc
• The second is the person who makes a will in writing donating organs to
be removed after death. The will is witnessed by two or more persons.
! !114
One of whom is the nearest relative. After his or her death, the person in
lawful possession of the body can authorize removal of the organ
provided he is satisfied that the will was not changed later. For example,
the cornea to be transplanted for therapeutic purposes should be
removed within 6 hours from the dead body.
• The third category are persons in lawful possession of the body, who are
absolutely certain that the dead person never had any objection to
removal of parts of his body and therefore consent to organ removal. For
example unclaimed bodies.
According to the Act, the organs can be removed only by a registered

medical practitioner i. e MBBS doctors and nobody else. Experts doing
organ transplantation must have post graduate qualifications with at least
three years experience after MS.
Before removal of organ, in case of death, it must be confirmed by a board

of medical experts approved by the appropriate authority i.e. no organ can
be removed, unless the death certificate is ready. They are:-
• The registered medical practitioner in charge of the hospital where the

death has occurred.
• An independent specialist nominated by him (i.e. the person certifying

death should not be a member of the transplant team).
• A neurosurgeon or neurologist, also nominated by the hospital-in-charge;

and
• The registered medical practitioner treating the patient.
The doctor in charge of the hospital must select specialists from a panel
approved by the appropriate authorities appointed by the Central
Government for Union Territories and by State Government for the States.
Organs for transplantation can be removed from a living or dead child

below the age of 18 years with the consent of either of the parents.
If an inquest is ordered into any death, organs cannot be removed if they

are required to arrive at the cause of death. In the case of unclaimed
! !115
bodies lying in hospitals or prisons, the authority to remove organs rests in

the person in charge of the hospital, but only after waiting
48 hours for lawful claimants (by which time the organs may lose their
utility value).
Where a post-mortem examination is required to be done, authorization for

removal of the part can be made provided that organ is not required for
the purpose for which the post-mortem is done. For example, if a person
dies an accidental death falling down from a height, his eyes can be
donated as they would not be useful in determining the cause of death.
Preservation of the organ after removal is the responsibility of the doctor.

The Act protects him against charges of mutilating the body or offending
religious or emotional sentiments which are considered offences under
Section 297 of the Indian Penal Code.
Live Donation:
• As far as possible live donor is concerned, he can donate his organ only
to a near relative, i.e. husband and wife, father and mother, son and
daughter and sister. It is this clause that attempts to prevent malpractice
in transplantation including sale of the organ. But there is an additional
clause that says that if the donor and the recipient jointly make an
application, the appropriate authority may permit live un-related
transplants base on merit in genuine cases.
• Every hospital offering transplant services must be registered with the

appropriate authority, over and above, registration under the Hospital
and Nursing Home Registration Act. The transplant must be performed
for therapeutic and not other purpose such as experiments or research.
• Except for eyes and ears which can be removed at any place, other
organs for transplantation have to be removed at the registered hospital.
Informed consent of donor and recipient is required for carrying out
transplantation.
! !116
Functions of the Appropriate Authority:
The functions of the appropriate authority concerned with organ

transplantation and appointed by central government are:
• To register or renew registration of hospitals for the purpose of organ

transplantation;
• To suspend or cancel the registration when required, if any malpractice

such as racket for kidney removal is suspected ;
• To enforce standards laid down under the Act, like removal and donation
of the organ for the purpose of organ transplantation
• To investigate complaints of Act violation, for example of the removed

organ used for research and clinical trials.
Members are also expected periodically to inspect the registered hospital.

Registration of the hospitals registered for carrying out organ transplants is
valid for five years, and may be renewed every five years by paying the
prescribed fee.
Powers of the Appropriate Authority:
• It can issue show cause notice on receiving a complaint or move sue-

motto, when things come to living without waiting to the approached.
• It can suspend or cancel hospital registration and also recommend to the

Medical Council to suspend the registration of any doctor found guilty
under the Act, such as involved with illegal removal of the kidneys.
• If any doctor found guilty under the Act, appropriate authority can
impose
• penalty for the doctor for imprisonment of five years
• With a fine up to Rs. 10,000.
• without a fine up to Rs. 10,000
! !117
• It can suspend Medical Council Registration for two years for the first
offence and permanently thereafter.
• Commercial dealings in relation to organ transplantation in any form are

punishable with a fine of Rs. 10,000 to Rs. 20,000 and imprisonment for
seven years.
• The jurisdiction of the organ transplantation Act lies with the magistrate's
court, metropolitan or judicial magistrate of first class.
Critical Analysis of the Act:
• The Transplantation of Human Organs Bill was passed June 1994 and the
President had given his assent in July. But this vital legislation was
gathering dust for six long months before it was notified by the Central
Government. The delay reflected a lack of urgency among the officials to
put an end to the malpractices in "Kidney trade" in several cities of India.
At present the law is endorsed only by a minimum number of States. If
this law is not adopted by all the States, the malpractices in organ
transplantation can flourish in other States. The Central Government and
the public must exert pressure on the State Governments to adopt the
Act as soon as possible.
• The Act does not prohibit the transplantation of human organs in all
cases but merely require that the approval of the special authorities
(Committee to be constituted) be taken before transplantation is
performed, if the donor and the recipient are not related to each other.
This provision leaves some room for racketeering in organ sale.
• The punishment under the Act of two years imprisonment extending to

the maximum of seven may not be enough of a deterrent to those
doctors who can perform organ transplants clandestinely and earn lakhs
of rupees from the nefarious trade. The fine of Rs. 10,000 to Rs. 20,000
for a middle man is laughable because a tout can earn as much on a
single sale.
! !118
Suggestions for Effective Implementation of the Act:
• The Act may push the organ trade further underground if appropriate
steps are not taken by the Government to prevent the causes of the
trade. Legislation at best can adversely affect organ trade only
marginally.
• The Central Government and the NGO's promoting health in different

States must exert pressure on the State Governments, which have not
adopted the Act.
• A self monitoring mechanism among the medical community must be

generated to dissuade the practice of organ trade and to expose the "few
unscrupulous ones" who are tarnishing the image of the fraternity.
• With the kind of money involved, the penalty of Rs. 10,000 and
imprisonment up to five years may not prove to be much of a deterrent.
Hence, fine must be enhanced considerably.
• Doctors who violate this law should be ruthlessly punished. The

government must cancel the license of the errant doctors engaged in this
inhuman and unethical practice.
• Government must take the imitative to crack down the nexus between
the foreign recipients and the Indian doctors and their agents involved in
the illegal practice of organ transplantation. For example many patients
from oil rich nations come here for the want of organ transplantation,
such as kidney, liver, cornea transplantation.
Initiative must be taken by NGO's working in the health filed to study the
moral and ethical issues involved in the organ transplantation. The law
must be implemented both in letter and spirit; otherwise the notification of
the Act will not make any sense.
! !119
3.2 PRE-NATAL DIAGNOSTIC TECHNIQUES (Regulation and

Prevention of Misuse) ACT, 1994
According to 2001 census, India became the second country in the world to
cross the one billion mark. Though the population of the country rose by
21.34% between 1991 and 2001, the child sex ratio declined shockingly.
The child sex ratio is calculated as number of girls per 1000 boys
in the 0-6 year's age group. The average sex ratio at birth is usually 940
to 950 girls per 1000 boys, in India. Over the years, this has fallen and
1991 censes reported a child sex ratio of 945 girls per 1000 boys which
further declined to 927 during 2001 census. In Tamil Nadu, all age sex
ratio in 1991 was 974 per 1000 male and 986 per 1000 male in 2001. The
child sex ratio (0-6 years) which was 948 female children to 1000 male
children declined as 939 female children to 1000 male children. Society
needs to recognize this discrimination between male and female child and
control the unnecessary incidence female infanticide. More numbers of
either sex or the resulting imbalance can destroy the social and human
structure.
In States such as Punjab, Haryana, Gujarat and Delhi, child sex ratio has
declined to less than 900 girls per 1000 boys. Kurushetra of Haryana
District in India sex ratio stands at a minimum 770 girls per 1000 boys.
There are reasons to believe that the practice of elimination of female
fetuses is one of the important contributions to the adverse child sex ratio.
There is also strong preference for sons, which is influenced by many
socio-economic and cultural factors such as
• the son being responsible for carrying forward the family name and
occupation
• a source of support during old age
• for performing religious rites at the time of cremation
• Subsequently the practice of dowry and daughters being viewed to be

married and sent away.
Different scientific techniques such as amniocenteses and sonogarphy were

adverted to detect genetic disorders in the fetus. But this technique was
supported to be used mainly to detect the genetic deformities at the Pre-
! !120
Natal stage and has become very popular means for detection of the sex of
a fetus and elimination of female fetus through illegal abortions. Alarmed
by this situation, Government of India enacted "Pre-Natal Diagnostic
Techniques" (Regulation and Prevention of Misuse) Act in 1994, came into
force with effect from January 1, 1996 prohibits the tests rather it permits
the same in certain situations with certain conditions for detecting the
genetic disorders of the foetus with a condition not to disclose the sex of
the foetus to the woman or her relatives in any form or way.
The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)

Amendment Act 2002 came into force with effect from 14th February,
2003. PNDT Act 1994 now stands renamed as "The Pre-conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act". The Act
provides for the prohibition of sex selection, before or after conception. It
regulates the use of Pre-Natal Diagnostic Techniques such as ultra sound
for the purpose of detecting genetic abnormalities or other sex linked
disorders in the fetus. The purpose of PNDT Act 1994 is to prevent misuse
of such techniques for sex determination which lead to elimination of the
female fetus and thereby create a gender imbalanced society.
The main provisions of the PNDT Act are as follows: Section - 3: (who and
where to conduct PNDT)
a. Only registered Genetic Centers, Laboratory or Clinics can carry out pre-
natal diagnostic tests.
b. Only medical person who possesses the medical qualification prescribed

in the Act can conduct the test (Sonologist).
c. Only in the place registered under this Act.
d. No person shall sell any ultrasound machine or scanner or any other

equipment capable of detecting sex of fetus to any counseling center,
laboratory or person not registered under the Act.
Section - 4 Clause - 3: (indications for doing pre-natal diagnostic test)

Pre-Natal Diagnostic Techniques shall be used or conducted unless the
person qualified to do so is satisfied in one or more of the following
conditions:
! !121
a. Age of the pregnant woman is above 35 years ( such as increased

incidence of down syndrome, in an elderly pregnant woman )
b. b. The pregnant woman has undergone two or more spontaneous

abortions of fetal loss, (such as increased incidence first trimester
abortion in the diagnosed case of hydatid mole )
c. c. The pregnant woman had been exposed to drugs, radiation,
chemicals or infection ( this is reason , why a pregnant woman is NOT
exposed to unnecessary X- rays, as X- rays are known to be
mutagenic )
d. d. The pregnant woman or her spouse has a family history of mental
retardation or physical deformities ( such as anencephaly- absence of
scalp , phacomelia- absence of limbs etc )
Section - 4 Clauses - 4:
No person including a relative or husband of the pregnant woman shall
seek or encourage conducting of any Pre-Natal Diagnostic Techniques on
her except for the purposes specified in Clause 2.
Section - 5: (informed consent for doing PNDT)

The person carrying out PNDT has to obtain the informed consent of the
woman in the prescribed form and language she understands. She must be
made aware about the possible side effects. An undertaking is also
required from the woman to the effect that she will not terminate the
pregnancy, if there is a normal child of either sex. The written consent
will serve as documentary evidence and protect doctors from the medico-
legal complications.
Section - 5 Clauses - 2:
No person including the person conducting PNDT shall communicate to the
pregnant woman concerned or her relatives or any other person the sex of
the fetus by words, signs or in any other manner.
Section - 6:
No person shall, by whatever means, causes or allow to be caused
selection of sex before or after conception.
! !122
Section - 16
Function of the State Board:
• To advise the Central Government on policy matters relating to use of

pre-natal diagnostic techniques, sex selection techniques and against
their misuse.
• To review and monitor implementation of the Act and Rules made there
under and recommend to the Central Government changes in the said
Act and Rules.
• To create public awareness against the practice of pre-conception sex

selection and pre-natal determination of sex of fetus leading to female
feticide.
• To lay down code of conduct to be observed by persons working at

Generic Counselling Centers, Genetic Laboratories and Genetic Clinics.
• To oversee the performance of various bodies constituted under the Act

and take appropriate steps to ensure its proper and effective
implementation.
• Any other functions as may be prescribed under the Act.
Section - 16A
Functions of the State Supervising Board:
• To create public awareness against the practice of pre-conception sex

selection and pre-natal determination of sex of fetus leading to female
feticide in the State.
• To review the activities of the Appropriate Authorities functioning in the

State and recommend appropriate action on violation of the Act.
• To monitor implementation of provisions of the Act and the Rules and

make suitable recommendations relating thereto, to the Board.
! !123
• To send such consolidated reports as may be prescribed in respect of

various activities undertaken in the State under the Act to the Board and
the Central Government.
• Any other functions as may be prescribed under the Act
Section - 17A
Members of the Appropriate Authority:
• An officer of or above the rank of the Joint Director of Health and Family
Welfare- Chairperson.
• An eminent woman representing Women's Organization; and
• An officer of Law Department of the State or the Union Territory

concerned.
Functions of the Appropriate Authority:
i. To grant registration or cancel registrations.
ii. To take appropriate legal action against the use of any sex selection
technique by any person at any place, sue-motto or brought to its notice
and also to initiate independent investigations in such matter.
iii. To create public awareness against the practice of sex selection or pre-
natal determination of sex.
iv. To supervise the implementation of the provisions of the Act and Rules.
v. To recommend to the Central Board and State Boards modifications

required in the rules in accordance with changes in technology or social
conditions.
vi. To take action on the recommendations of the Advisory Committee

made after investigation of complaint for suspension or cancellation of
registration.
! !124
Section - 17A:
Power of Appropriate Authority:
• Summoning of any person who is in possession of any information

relating to violation of the provisions of this Act or the Rules made there
under.
• Production of any document or materials or object relating to clause (a).
• Issuing search warrant for any place suspected to be indulging in sex

selection techniques or pre-natal sex determination; and
• Any other mater which may be prescribed.
Section - 18:
No person shall open any Genetic Counselling Centre Laboratory / Clinic
having ultra sound or scanner or render services to any of them unless
such Centre / Laboratory / Clinic is duly registered under the PNDT Act.
Section - 22:
1. No person / organization / genetic counselling centre / laboratory / clinic

having ultra sound machine / scanner capable of undertaking
determination of sex of fetus shall issue, publish any advertisement in
any form regarding facilities of pre-natal determination of sex or sex
selection before conception available at such centre.
2. Any person who is found to be violating PNDT Act shall be punishable

with imprisonment for a term which may extend to three years and with
fine which may extend to Rs. 10,000/-.
Section - 23:
1. If charges are framed against the Medical Practitioner concerned with

the illegal sex determination and illegal abortion , his / her registration
in the Medical Council will he suspended till the case is disposed of and
on conviction his / her name will be removed for a period of 5 years for
the first offence and permanently for the subsequent offence.
! !125
2. Any person who seeks the help of Genetic Counselling Centre / Clinic
Laboratory for sex selection, he / she shall be punishable with
imprisonment for a term which may extend to 3 years and with fine
which may extend to Rs. 50,000/- for the first offence and for any
subsequent offence with imprisonment which may extend to 5 years and
with fine which may extend to Rs. 1, 00,000/-
3.3 THE BOMBAY NURSING HOMES REGISTRATION ACT

1949
An Act to provide for the registration and inspection of nursing

Homes in the Province of Bombay and for certain purpose
Connected therewith.
WHEREAS it is expedient to provide for the registration and inspection of

nursing homes in the Province of Bombay and for certain purposes
connected therewith; It is hereby enacted as follows: -
1.
1) This Act may be called the Bombay Nursing Homes Registration Act,
1949.
2) This section extends to the whole of the Province of Bombay. The

remaining provisions of this Act extend in the first instance to the
Greater Bombay and the areas within the limits of the Municipal
Boroughs of Ahmadabad, Poona City, Poona Suburban and Sholapur
and the Provincial Government may, by notification in the Official
Gazette, direct that the said provisions shall extend to such other
areas as may be specified in the notification.
3) This section shall come into force at once. The Provincial Government
may, by notification in the Official Gazette, direct that the remaining
provisions of this Act shall come into force in any area to which they
said provisions extend or may have been extended under sub-section
(2) on such date as may be specified in the notification
2. In this Act, unless there is anything repugnant in the subject or context
1) "By-laws" means by-laws made by the local supervising authority,

like Municipal Corporation of greater Mumbai.
! !126
2) "Local supervising authority" in the case of a municipal area means

the municipality established for such area , and in the case of any
other area a district local board established for the said area, for
example if a nursing home is to be established in a sub-urban area of
Mumbai , say kurla, will be under the jurisdiction of kurla municipal
corporation
3) According to the Bombay Nursing Homes Registration Act, 1949, a

"Maternity home" means any premises used, or intended to be used,
a. for the reception of pregnant women
b. For management of women in labor pain
c. For management & care of woman and baby, immediately after

child birth
4) "Nursing home" means any premises used or intended to be used, for

the reception of persons suffering from any sickness, injury or
infirmity and the providing to treatment and nursing for them, and
includes a maternity home; and the expression "to carry on a nursing
home" means to receive persons in a nursing home for any of the
aforesaid purposes and to provide treatment or nursing for them;
5) "Prescribed" means prescribed by rules made under this Act;
6) "Qualified medical practitioner" means a medical practitioner

registered under the Bombay Medical Act, 1912, or any other law for
the time being in force;
7) "Qualified midwife" means a midwife registered under the Bombay

Nurses, Midwives and Health Visitors Registration Act, 1935;
8) "Qualified nurse" means a nurse registered under the Bombay

Nurses, Midwives and Health Visitors Registration Act, 1935;
9) "Register" means to register under section 5 of this Act and the

expressions "registered" and "registration" shall be construed
accordingly;
! !127
10)"Rules" means rules made under this Act.
3. No person shall carry on a nursing home unless he has been duly

registered in respect of such nursing home and the registration in
respect thereof has not been cancelled under section 7: Provided that
nothing in the section shall apply in the case of a nursing home which,
is in existence at the date of the commencement of this Act, for a period
of three months from such date or if an application for registration is
made within that period in accordance with the provisions of section 4
until such application is finally disposed of.
4. (1) every person intending to carry on a nursing home shall make every
year an application for registration or the renewal of registration to the
local supervising authority Provided that in the case of a nursing home
which is already in existence at the date of the commencement of this
Act, an application for renewal of registration of nursing home , shall be
made within three months from such date.
(2) Every application for registration or the renewal of registration shall

be made on such date and in such form and shall be accompanied, by
such fee, as may be prescribed.
5. (1) Subject to the provisions of this Act and the rules , the local
supervising authority shall, on the receipt of an application for
registration, register the applicant in respect of the nursing home
named in the application and issue to him a certificate of registration in
the prescribed form:
Provided that the local supervising authority may refuse to register the
applicant if it is satisfied:
a. That he, or any person employed by him at the nursing home, is not
a fit person, whether by reason of age or otherwise, to carry on or to
be employed at a nursing home of such a description as the nursing
home named in the application; such as staff nurses, duty doctor's,
ward boys, nursing home billing clerk etc.
b. That the nursing home is not under the management of a person who
is either a qualified medical practitioner or a qualified nurse and who
is resident in the home, or that there is not approver proportion of
! !128
qualified nurses among the persons having the superintendence of or

employed in the nursing of the patients in the home; or designated
hospital administrator.
c. That in the case of a maternity home it has not got on its staff a
qualified midwife; ( i.e. qualified staff nurse is not diploma in
nursing )
d. That for reasons connected with the situation, constriction,

accommodation, staffing or equipment, the nursing home or any
premises used in connection therewith are not fit to be used for a
nursing home of such a description as the nursing home mentioned in
the application or that the nursing home or premises are used or are
to be used for purposes which are in any way improper or undesirable
in the case of such nursing home.
2) A certificate of registration issue under this section shall, subject to

the provisions of section 7, be in force and shall be valid until the 31st
day of March next following the date on which such certificate was
issued. (I.e. validity of registration of a nursing home will be from 1st
April to 31st March)
3) The certificate of registration issued in respect of nursing home shall

be kept affixed in a conspicuous place in the nursing home.
6. Whoever contravenes the provisions of section 3 of Bombay nursing

registration Act, shall, on conviction, be
a. punished with fine which may extend to five hundred rupees
b. the case of a second or subsequent offence, with imprisonment for a

term which may extend to three months
c. with fine which may extend to five hundred rupees or with both (fine
& term imprisonment)
7. Subject to the provisions of this Act, the local supervising authority may
at any time cancel the registration of a person in respect of any nursing
home on any ground which would entitle to refuse an application for the
registration of that person in respect of that home, or on the ground
! !129
that that person has been convicted of an offence under this Act or that
any other person has been convicted of such an offence in respect of
that home.
8. (1) Before making an order refusing an application for registration or an

order canceling any registration, the local supervising authority shall
give to the applicant or to the person registered, as the case may be,
not less than one calendar month's notice of its intention to make such
an order, and every such notice shall state the ground on which the local
supervising authority intends to make the order and shall contain an
intimation that if within a calendar month after the receipt of the notice
the applicant or peers on registered informs the authority in writing that
he desires so to do, the local supervising authority shall, before making
the order, give him (in person or by representative) an opportunity of
showing cause why the order should not be made.
(2)If the local supervising authority, after giving the applicant or the
person registered an opportunity of showing cause as aforesaid, decides
to refuse the application for registration or to cancel the registration, as
the case may be, it shall make an order to that effect and shall send a
copy of the order by registered post to the applicant or the person
registered.
(3)Any person aggrieved by an order refusing an application for

registration or canceling any registration may, within a calendar month
after the date on which the copy of the order was sent to him, appeal to
the Provincial Government against such order of refusal. The decision of
the Provincial Government on any such appeal shall be final.
(4)No such order shall come into force until after the expiration of a
calendar month from the date on which it was made or, where notice of
appeal is given against it, until the appeal has been decided or
withdrawn.
9. (1) The Health Officer of the local supervising authority or the Civil
Surgeon of the district in which a nursing home is situated or any other
officer duly authorized by the local supervising authority or the Civil
Surgeon, may, subject to such general or special orders as may be
made by the local supervising authority, at all reasonable times enter
and inspect and premises which are used, or which that officer has
! !130
reasonable cause to believe to be used, for the purpose of nursing

home, and inspect any records required to be kept in accordance with
the provisions of this Act:
Provided that nothing in this Act shall be deemed to authorize any such
officer to inspect any medical record relating to any patient in a nursing
home.
(2)If any person refused to allow any such officer to enter or inspect any
such premises as aforesaid, or to inspect any such records as aforesaid
or abstracts any such officer in the execution of his powers under this
section, he shall be guilty of an office under this Act.
10.Any fees received under this Act shall be paid into the fund of the local
supervising authority.
11.Notwithstanding anything contained in any enactment in regard to any

municipal or local fund, all expenses incurred by a local supervising
authority under and for the purposes of this Act and the rules and by-
laws may be paid out of the municipal or local fund, as the case may be.
12.Whoever contravenes any of the provisions of this Act or of any rule

shall, if no other penalty is elsewhere provided in this Act or the rules
for such contravention, on conviction, be punished with fine which may
extend to fifty rupees and in the case of a continuing offence to a
further fine of fifteen rupees in respect of each day on which the offence
continues after such conviction.
13.Where a person committing an offence under this Act is a company or

other body corporate or an association of persons (whether incorporated
or not), every person who at the time of the commission of the offence
was a director, manager, secretary, agent or other officer or person
concerned with the management thereof shall, unless he proves that the
offence was committed without his knowledge or consent, be deemed to
be guilty of such offence.
14.No court other than that of a Presidency Magistrate or a Magistrate of

the first class shall take cognizance of or try any offence under this Act.
! !131
15.No suit, prosecution or other legal proceeding shall be instituted against

any person for anything which is in good faith done or intended to be
done under this Act, rules or by- laws.
16.(1) The Provincial Government may, by notification in the Official

Gazette, make person for anything which is in good faith done or
intended to be done under this Act, rules or by-laws.
(2)Without prejudice to the generality of the foregoing provisions such

rules may prescribe-
a. The form of the application to be made under section 4.
b. The date on which an application for registration or renewal of

registration to be made and the fees to be paid for such registration
or renewal of registration,
c. The form of the certificate of registration to be issued under section

5.
d. For any other matter for which no provision has been made in this
Act, and for which provision is, in the opinion of the Provincial
Government, necessary.
(3)The power to make rules under this section shall be subject to the
condition of previous publication in the Official Gazette.
17.(1) the local supervising authority may make by-laws not inconsistent
with this Act or rules-
a. Prescribing the records to be kept of the patients received into a

nursing home, and in the case of the maternity home, of
miscarriages, abortions or still births occurring in the nursing home
and of the children born therein and of the children so born who are
removed from the home otherwise than to the custody or care of any
parent, guardian relative.
b. Requiring notification to be given of any death occurring in the

nursing home.
! !132
(2)Any by-law made by a local supervising authority under this Act may
provide that a contravention thereof shall be punishable:
a. With fine which may extend to fifty rupees; or
b. With fine which may extend to fifty rupees and in the case of a
continuing contravention, with an additional fine which may extend to
fifteen rupees for every day during which such contravention
continues after conviction, for the first such contravention; or
c. With fine which may extend to fifteen rupees for every day during
which the contravention continues after the receipt of a notice from
the local supervising authority by the person contravening the by-law
requiring such person to discontinue such contravention.
d. No by-law made by the local supervising authority shall come into

force until it has been confirmed by the Provincial Government with
or without modification.
(3)All by-means under this section shall be published in the official

Gazette.
18.Bombay Nursing Homes Registration Act, 1949, does not apply to
a. Any nursing home carried on by Government
b. local authority or any other body of persons approved by the

Provincial Government in this behalf
c. Any asylum for lunatics or patients suffering from mental diseases as

per the Indian Lunacy Act, 1912.
By-Laws: III. Record of patients received into or of children born in the

Nursing Home: -
The keeper of a Nursing Home shall keep and maintain.
a. In the form appended to these by-laws a register of patients received

into the Nursing Home;
! !133
b. A correct alphabetical index of the names of the patients admitted to

the nursing home;
c. A daily record of health of every patient who may be suffering from

acute illness;
d. A daily record of health of every woman admitted to the nursing, like

full term pregnant mother comes to maternity nursing home, where the
delivery can be conducted.
e. Home for delivery and of every child born to such woman in nursing
home; like pediatrics section of the maternity home where records of
the newly born babies can be kept.
f. A daily and weekly record of health of other patients.
2. The Keeper of nursing home shall keep and maintain a register special
form, of maternal and infant deaths occurring in the nursing home, and
submit monthly returns thereof to the Executive Health Officer, like
district health officer who maintain the monthly statistics of maternal &
infant mortality, which is decreasing drastically at present due to better
advancement in medical care.
3. Where the register referred to in sub clause (1) relates to a woman who
has been admitted for delivery and where a child born to such woman is
removed with the consent of the keeper of a nursing hope and of the
parents or mother, to the care of a person other than its father,
guardian or relative, the keeper of such nursing home shall, in addition
to the particulars specified in clause (1) also specify in the register the
name and address of such person and the date on which and the
consideration for which the child was so removed.
IV. Notice of death occurring in Nursing Home: -
(1)If any death occurs in a nursing home, the keeper of the nursing home
shall within 24 hours from the occurrence of the death, the notice of
such death should be given to the Executive Health Officer, like district
health officer of the Corporation or the Registrar of Births and Deaths
for the District, as per the central birth and death registration act or to
! !134
the officer concerned who is appointed under section 442 of the

Municipal Act, within whose jurisdiction the nursing home is situated.
(2)The notice may be sent by pre-paid post or in any other effective

manner
a. The notice shall contain the particulars required to be entered in a

register sheet under Section 451 of the Municipal Act.
b. Within twenty-four hours of the conclusion of the inquest particularly

about medico- legal cases , if any, held on the death of any patient
admitted into a nursing home, the keeper of such home shall forward
a report to the Executive Health Officer of the Corporation or the
Registrar of Births and Deaths for the District concerned, containing
the following particulars, namely: -
c. Date of inquest;
d. Cause of death was found by the authority by which the inquest was
held.
e. Penalty: - Any person who contravenes the provisions of any of these

bye- laws, shall, on conviction, be punished
f. With fine which may extend to Rs 50/-, or
g. With fine which may extend to Rs 50/- and in the case of a continuing
contravention with an additional fine which may extend to Rs 15/- for
every day during which such contravention after conviction for the
first such contravention, or
h. With fine Which may extend to Rs 50/- for every day during which the
contravention continues after the receipt of a notice from the
Corporation by the person contravening the by-laws, requiring such
person to discontinue such contravention.
! !135
3.4 BIOMEDICAL WASTE (MANAGEMENT & HANDLING)

RULES, 1998
Objective of the Rules:

Under the powers confirmed by section 6, 8 and 25 of the Environment
(Protection) Act 1986, the Central Government has made the Bio medical
Waste (Management & Handling) Rules to safeguard the public and health
care workers from the risk arising due to Bio medical waste.
Important Definitions:
Authorization : means permission granted by the prescribed authority for
the generation, collection, reception, storage transportation, treatment,
disposal and / or any other form of handling of bio-medical waste in
accordance with these rules and any guidelines issued by the Central
Government;
Bio-medical waste : means any waste, which is generated during, the

diagnosis, treatment or immunization of human beings or animals or in
research activities pertaining to in the production or testing of biological
and including categories mentioned is Schedule I;
Biological - means any preparation made from organisms or micro

organisms or product of metabolism and biochemical reaction intended for
use in the diagnosis, immunization or the treatment of disposal of human
beings or animals or in research activities pertaining, hereto
Bio-medical waste treatment facility: means any facility wherein treatment,

disposal of bio- medical waste or processes incidental to such treatment or
disposal is carried out;
Occupier- in relation to any institution generation bio-medical waste, which

includes a hospital, nursing home, clinic, dispensary, veterinary
institutions, animal house, pathological laboratory, blood bank by whatever
name called, means a person who has control over that institution and / or
its premise.
! !136
Important provisions of the Rules:
A. The Rule casts obligation on every occupier of an institution generating

bio-medical waste, which includes a hospital nursing home, clinic,
dispensary, veterinary institutions and animal house, pathological
laboratory, blood bank by whatever name called to take all steps to
ensure that such waste is handled without any adverse effect to human
health and the environment.
B. The Rule also lays down standards for treatment and disposal of Bio
medical waste.
C. The Occupier is also required to set up requisite bio medical waste

treatment facilities like incinerator, autoclave, microwave system for the
treatment of waste or ensure requisite treatment of waste at a common
waste treatment facility or any other waste treatment facility.
D. Every authorized person shall maintain records related to the

generation, collection, reception, storage, transportation, treatment,
disposal and / or any form of handling of bio-medical waste in
accordance with these rules and any guidelines issued. All records shall
be subjected to inspection and verification by the prescribed authority at
any time.
E. The Act also makes it mandatory for the authorized person to report
occurrence of any accident at any institution or facility or any other site
where bio-medical waste is handled or during transportation of such
waste, to the prescribed authority forth with.
Treatment, Disposal and Transportation of Bio Medical Waste:

The Rule provides that Bio-medical waste shall be mixed shall not be mixed
with other wastes and at the point of generation should be segregated into
labeled containers / bags prior to its storage, transportation, treatment and
disposal. The Bio Medical Waste shall be transported in vehicle authorized
by the competent authority as per the rule of BMW rules 1998.
It is categorically mentioned that no untreated bio-medical waste shall be

kept / stored beyond a period of 48 hours. However for any reason it
becomes necessary to store the waste beyond such period, the authorized
person must take permission of the prescribed authority and take
! !137
measures to ensure that the waste does not adversely affect human health
and the environment.
Registration / Renewal Procedure:

Every occupier of an institution generating, collecting, receiving, storing,
transporting, treating, disposing and / or handling bio-medical waste is any
other manner, except such occupier of clinic, dispensaries, pathological
laboratories, blood banks providing treatment / service to less than 1000
(one thousand) patients per month operator of a bio medical waste facility
shall make an application in Form 1 to the prescribed authority for grant of
authorization along with prescribed fees.
The prescribed authority shall on receipt of application and enquiry thereof

regarding the capacity to handle bio-medical waste in accordance with
these rules, grant or renew an authorization as the case may be.
All the health care institution, initially authorized for Bio-medical waste
management, rules is required to apply for renewal of BMW license, within
three Years. Thereafter, an application shall be made by the occupier.
Operator for renewal. All such subsequent authorization shall be for a
period of three years. A provisional authorization will be granted for the
trial period, to enable the occupier / operator to demonstrate the capacity
of the facility.
The prescribed authority may after giving reasonable opportunity of being

heard to the application and for reasons thereof to be recorded in writing,
refuse to grant or renew authorization. The prescribed authority may
cancel or suspend an authorization, if for reason, to be recorded in writing,
the occupier / operator has failed to comply with any provision of the Act
or these rules.
Any person aggrieved by such may, within thirty days from date of order,
refer an appeal to such authority as the Government of State / Union
Territory may think fit to constitute. The time restriction can be relaxed if
the appellant satisfies that he was prevented by sufficient cause from filling
the appeal in time.
Offences and Penalties:

The penalties are same as specified in Environment (Protection) Act, 1986
! !138
Bio-Medical Waste (Management and Handling) (Amendment)

Rules, 2003.
Ministry of Environment and Forests, notification, New Delhi, the

17th September, 2003.
1. S.O. 1069(E) - In exercise of the powers conferred by sections 6, 8

and 25 of the Environment (Protection) Act, 1986 ( 29 of 1986), the
Central Government hereby makes the following rules further to amend
the Bio-Medical Waste ( Management and Handling) Rules, 1998,
namely:-
a. These rules may be called the Bio-Medical Waste (Management and

Handling) (Amendment) Rules, 2003.
b. They shall come into force on the date of their publication in the
Official Gazette so that the rule can be implemented.
2. In rule 7 of the Bio-Medical Waste (Management and Handling)

Rules, 1998 (hereinafter referred to as the said rules) -
a. in sub-rule (1), for the opening words "The prescribed authority for
enforcement", the words "Save as otherwise provide, the prescribed
authority for enforcement" shall be substituted;
b. after sub-rule (1), the following sub-rule shall be inserted, namely:-
(1A) The prescribed authority for enforcement of the provisions of these

rules in respect of all health care establishments including hospitals,
nursing homes, clinics, dispensaries, veterinary institutions, Animal
houses, pathological laboratories and blood banks of the Armed Forces
under the Ministry of Defense shall be the Director General, Armed
Forces Medical Services”.
3. In the said rules, existing rule 9 shall be re-numbered as sub-

rule (1) thereof, and after sub-rule (1) as so re-numbered, the
following sub-rule shall be inserted, namely:-
(2)Notwithstanding anything contained in sub-rule (1) the Ministry of

Defense shall constitute in that Ministry, an Advisory Committee
! !139
consisting of the following in respect of all health care establishments

including hospitals, nursing homes, clinics, dispensaries, veterinary
institutions, animal houses, pathological laboratories and blood banks
of the Armed Forces under the Ministry of Defense, to advise the
Director General, Armed Forces Medical Services and the Ministry of
Defense in matters relating to implementation of these rules,
namely:-
a. Additional Director General of Armed Forces Medical Services ……..

Chairman
b. A representative of the Ministry of Defense not below the rank of

Deputy Secretary, to be nominated by that Ministry …….. Member
c. A representative of the Ministry of Environment and Forests not

below the rank of Deputy Secretary to be nominated by that Ministry.
…….. Member
d. A representative of the Indian Society of Hospitals Waste

Management, Pune …….. Member”
4. In the said rules, after rule 9, the following rule shall be

inserted, namely:-
9A. Monitoring of implementation of the BMW rules in Armed

Forces Health Care Establishments.-
a. The Central Pollution Control Board shall monitor the implementation of

these rules in respect of all the Armed Forces health care
establishments under the Ministry of Defense.
b. After giving prior notice to the Director General Armed Forces Medical
Services, the Central Pollution Control Board along with one or more
representatives of the Advisory Committee constituted under sub-rule
(2) of rule 9 may, if it considers it necessary, inspect any Armed Forces
health are establishments."
5. In the said rules, existing rule 13 shall be re-numbered as sub-rule (1)

thereof; and-
! !140
a. in sub-rule (1), as so re-numbered, for the opening portion, for the

words " Any person", the words, brackets and figure " Save as otherwise
provided in sub-rule (2), any person " shall be substituted ;
b. after sub-rule (1) as so re-numbered, the following sub-rule shall be

inserted, namely:-
"(2) Any person aggrieved by an order of the Director General, Armed

Forces Medical Services under these rules may, within thirty days from
the date on which the order is communicated to him prefer an appeal to
the Central Government in the Ministry of Environment and Forests".
[F. No.23-2/96-HSMD]
Dr. V. RAJAGOPAL, Jt. Secy.
Note: The Principle rules were published in the Gazette of India vide
notification number S.O. 630 (E) dated 20.7.98 and subsequently amended
vide-
(1) S.O.201 (E) dated 6.3.2000; and (2) S.O.545 (E) dated 2.6.2000.
3.5 TRUST ACT
Objective:
The law regarding trusts has assumed considerable importance in recent
times. More and more charitable trusts are being registered to avail of
facilities like getting contributions from donors as well as for getting
income tax exemptions, as these activities are concerned with charity
work.?
Introduction:
Registrations are done either under "The Societies Registration Act" or "The
Bombay Public Trust Act". The societies Registration Act is a Central act
and is applicable nationwide. The Bombay Public Trust Act was passed in
1950 by the erstwhile State of Bombay (including present Maharashtra and
Gujarat States) to tackle the issues of misadministration and
mismanagement of religious and charitable trusts. However any
registration done under the Societies Registration Act also automatically
gets converted into a registration under the Bombay Public Trust. This is so
! !141
because the definition of a "Public Trust" in the Bombay. Public Trust Act
includes a "Society" which is registered under the Societies Registration
Act. The Registration of any entity as a public trust beings it under the
Supervision and control of the Charity Commissioner who has wide powers
under the Bombay Public Trust Act to deal with the administration and
control of all public trusts. Thus, the trusts once registered become
answerable for their actions and deeds. The proceedings with the Charity
Commissioner are of a quasi-judicial nature and thereof are time
consuming as the usual courts procedures are to be followed. Yet any such
litigation has their own assurance value. The administering authorities of
trusts, i.e. trustees have therefore to operate keeping in mind that their
actions may be challenged through the forum of the Charity Commissioner.
The meaning of the word "Trust" :

The Indian Trust Act defines trust as "an obligation annexed to the
ownership of property and arising out of a confidence reposed in and
accepted by the owner or declared and accepted by him for the benefit of
another or of another and the owner". Thus is a simple word it means that
trust is a transfer of property by the owner to another for the benefit of the
third person along with or without himself.
The purpose of a trust must be lawful i.e.:
• Should not be forbidden by law.
• Should not be of such a nature that if permitted it would defeat the

provisions of any law.
• Should not be fraudulent or false.
• Should not involve injury to the property or person of another.
• Should not be such a nature as would be regarded as immoral.
A person competent to contract can create a trust, i.e. major person of

sound mind and not disqualified any other law. For example in health care
industry, there are many charitable trusts that do great work in the
medicines such as arranging diagnostic camps, cancer screening camps
etc. 
! !142
3.5.1 Registration of Public Trusts:
A public trust can be registered as a society under the Societies

Registration act. Any seven persons can join together to form a society
with memorandum of association and a constitution.
A person called "settler" contributes the initial fund known as trust fund
and can appoint original trustees. He can also create a Public Trust.
Execution of a non-testamentary document called trust deed is necessary.
Both the above are to be registered within three months of formation.
The Sec. 18 of the Bombay Public Trust Act provides elaborately regarding
registration of a public trust.
Step of formalities required for a society, to get registered as in registration

of societies act are
a. apply in the prescribed format available at the Charity Commissioner's

office
b. A court Fee stamp of Rs. 2 must be affixed to the application

c. The application has to be signed and solemnly affirmed by the trustees
d. One of the trustees can be authorized to sign the application and follow
up the proceedings
Following information to be provided:-
1. The name of the Trust, for example Guajarati Mahasabha trust
2. The names and addresses of the trustees i.e. the name of its important
members
3. The mode of succession to the office of the trustees (Will the trustees be
nominated or elected and if elected after what period)
4. The approximate value of movable & immovable property, .i.e. total

valuation of trust
5. Address of the trust.
! !143
6. Gross average annual income of the trust property (based on an

average of preceding three years).
7. Average annual expenditure.
8. The object of the trusties. i.e. the mission or aim of the trust. For
example princess Aga khan trust is mainly aims to provide basic and
advanced health care support to sick and poor patients below poverty
line.
As regards immovable property, details of location and proof of ownership

have to be furnished. The copy of the trust deed has also to accompany the
application for registration. In the case of a society to be registered under
the Societies Registration Act, the following documents are to be
submitted.
a. The Memorandum of Association
b. A copy of the rules and regulations (The Constitution)
After the above relevant documents with an application for registration are
submitted, the Deputy / Assistant Charity Commissioner will scan and
check the documents to ascertain:
• Whether really a trust exists.
• What are the objectives of the trust and whether they are charitable?
• Who are the trustees?
• What is the source of income for the trust? , so that no one cannot
simply run the trust to protect his illegal money, with no aims to serve
poor and needy people.
After the Deputy / Assistant Charity Commissioner are satisfied about

these queries, he passes the order for registering the society / trust and
the registration certificate is issued. In the case of a society, the certificate
of a registration of a society is issued first and the certificate of registration
as a trust is issued later. Thus a body originally registered as a society gets
two registration certificates and two numbers i.e. as a society and as a
! !144
trust. For example if all India ophthalmic society is to be registered as

trust, then first they get certificate of a registration of a society first and
the certificate of registration as a trust is issued later
All the details submitted by the trustees vide the application for
registration is then entered into a register at the Charity Commissioner's
office. Any person can get a certified copy of the entries by making a
simple application.
The register is known as schedule I register.
Change Report
The trustees are under a legal obligation to report to the Charity
Commissioner regarding any changes that take place in the entries
recorded in schedule 1 (i.e. .schedule 1 register) of the trust. Thus, if
there is a change in
a. The name of Trustees.
b. The trust property / office of the Trust.
c. The object of the trust.
d. The rules and regulations of the trust
The trustees must report the change in 90 days to the Deputy / Assistance
Charity Commissioner. If any of the trustees make a default in such report
it amounts to an offence as per the Sec. 66 of the Bombay Public Trust act
and the trustees can be penalized.
a. Change in the trustees: Any of the trustees may die, resign, disclaim or
leave the country for permanently setting abroad. The composition of
the trustee board many change due to periodical elections as per rules
and regulations. For example a Guajarati business man who was initially
the member of a charitable trust, shifted his business from India to
Kenya.
b. The trust property: The trust may acquire new property or may dispose
off / alienate the trust property.
! !145
c. The trust may change its objects by either adding or deleting any of it
objects. For example initially the trust hospital which was providing
medical service free of cost now started charging from the patients.
d. There may be changes in the rules and regulations.
In the eventuality of any of the above changes, the trustees are legally
bound to report the changes to the Charity Commissioner. Such change
reports the changes to the charity Commissioner. Such change report
should specify:
• The nature of the change i.e. from free service to paid service.
• The reasons of the change i.e. due to increase in the cost of service, so
change from free service to the paid service.
• Any other remarks
It is also necessary for the trustees to submit necessary and relevant

documents in support of the reported changes. If new trustees are to take
over from the old trustees, then consent letters from both incoming and
outgoing trustees are necessarily to be furnished. If the deletion of the
trustees is due to the death of a trustee, then death certificate should
accompany the change report, which will serve as documentary evidence,
why change is required in the name of trustees.
If the change is regarding immovable property all particulars regarding the

property are to be submitted. After the change report is received, the
Assistant / Deputy Charity Commissioner has to be satisfied about the
authenticity and correctness of the change and then amend the entries is
Schedule I Register. The Assistant / Deputy Charity Commissioner have to
use his legal discretion. He has to see that reported change is legal.
Budget / Account / Audit:
Budget: Trustees of a Public trust which has an annual income exceeding

(Rs. 5000 in the case of a trust for public religious purpose and Rs.
10,000/- in other cases) has to submit at least one month before the
commencement of the accounting year, a budget showing probable receipts
and expenses during the year. This budget must have provisions for
! !146
carrying out the objects of the trust and the maintenance of trust property.
It is also necessary to send a copy of the resolution passed by the Board of
trustees sanctioning the budget.
Maintenance of Accounts: It is compulsory for all trusts to keep regular

and proper accounts. The accounts have to be balanced on 31st March and
be audited by a Chartered Accountant. After the Auditor has certified the
accounts, they have to be submitted to the Charity Commissioner in the
prescribed from within six months of closing of the financial year. The
statements of accounts are then scrutinized at the Charity Commissioner's
office to check whether expenditure has been incurred properly on the
objects of the trust.
Investment of Public Trust money:

Where the trust property consists of money and cannot be applied
immediately or at an early date to the purposes of the trust, the trustees
are bound to deposit the money in specified securities and bonds and in
specified financial institutions. The Money can be invested in
• Nationalized Banks like state bank of India, canara bank etc
• Co-operative Banks - virar-vasai co-operative bank
• Specified Foreign Banks - world bank, bank of America
• Specified institutions / Industries -like reliance industries, hero cycles etc
Investment in the purchase of immovable property:

Trustees have to seek the Charity Commissioner's consent while making
investment in the purchase of immovable property. The following
particulars must be submitted along with the application seeking consent.
1. A true copy to the resolution of the trustees.
2. If the property is to be constructed, then the estimate cost along with

estimate and the plans. If already build up property is to be purchased,
valuation report by an expert.
3. Complete details regarding the location of the property such as survey

No., road, area etc.
! !147
4. Copy of documents regarding proposed transaction i.e. agreement of

sale or sale deed.
5. The value of financial consideration of the property.
6. The details as to from which source the consideration will be supplied.
7. The present status of the money source.
8. Net annual return of the proposed investment.
9. The present investment pattern of the trust.
10.Objects of the trust.
11.Particulars of the trust income and money spent on the objects of the
trust for last 3 years.
12.Whether the person from whom property is sought to be purchased is

related to any of the trustees or is in way concerned with the trust.
If the trust intends to make additional construction for its objects it is not
necessary to take permission, however if the said construction is to earn
more income than it is necessary to obtain prior consent of the Charity
Commissioner.
The Charity Commissioner has to assess any such application with a view
to ascertain whether such construction will be beneficial to the trust. The
permission is granted only after the Charity Commissioner is satisfied.
Alienation of immovable property of the Trust:

There is a mandatory restriction on the trustees of all public trusts not to
sale, exchange and gift any immovable property belonging to a public trust
without the previous sanction of the Charity Commissioner. Similarly, there
can be no lease of any public trust (in the case of agricultural land for a
period exceeding 10 years) without the previous sanction of the Charity
Commissioner. This restriction on the trustees of all public trusts was
introduced because many trusts have extensive vacant lands, which were
unscrupulously disposed off or otherwise alienated by trustees to the
detriment of the trust interests. The Charity Commissioner accords his
! !148
sanction only after considering the interests of the trust. Sometimes the
trustees misrepresent material facts to suppress some vital facts and
obtain sanction of the Charity Commissioner fraudulently. In such cases, if
the said facts are bought to the notice of the Charity Commissioner, he
may institute inquiries. However, the trustees against whom allegations of
having obtained the sanction by fraud are leveled will be given a
reasonable opportunity by the Charity Commissioner to submit
explanations and clarify their positions. If the Charity Commissioner, after
making detailed inquires finally comes to the conclusion that the trustees
have acted, fraudulently, he will revoke the sanction and give directions to
the concerned trustees to recover the property within 180 days. If the
trustees fail to take steps to recover property, the Charity Commissioner
can assess the advantages received by the trustees and direct them to pay
compensation to the trust equivalent to the advantage as assessed. Thus
there is no prohibition on alienation of immovable property but only
precautionary measures are adopted in the interests of public trust. Any
alienation made without complying with these statutory requirements is
void and not binding on the trust. Any such application for alienation has to
give elaborate particulars such as the necessity for alienation, details of a
concrete proposal, clarification as to how the proposal is in the interest of
the trust, the resolution of the trustee board regarding the proposal etc.
While granting sanction to any alienation, it is the duty of the Charity
Commissioner to make necessary inquiries to know about the truth and
investigation of fraudulence. The Charity Commissioner issues a public
notice giving particulars of the proposed alienation in a newspaper in the
language of the local region and with a wide circulation and invites offers
from intending purchasers so that every in the locality becomes aware
about need to set up a charitable organization. The offer, which will fetch
the highest price, is then selected by the Charity Commissioner as the
charity commissioner will get many options due to wide publicity given
public notice in the local newspaper.
Powers and duties of trustees:

Every trustee is supposed to administer the affairs of the trust and utilize
funds and properties of the trust as per the terms of the trust and
directions of the Charity Commissioner, if any,
Restrictions on trustees:
The trustees of any charitable run hospitals cannot borrow money for or on
behalf of the trust except with the previous consent of the Charity
! !149
Commissioner. For example charity commissioner of Mumbai, cannot give

permission to any member of south Indian charitable organization to
borrow money from open market for any buying any costly equipments in a
charitable run hospitals, unless the member gives genuine reasons for the
same, which is beneficial for needy and poor patients.
Control of the Charity Commissioner:
a. The Charity Commissioner, the Deputy / Assistant Charity Commissioner

have powers to enter on and inspect any property of a public trust and
also to call for any books of accounts or documents in the possession of
the trustees and to get explanation from the trustees. All trustees are
bound to provide all facilities to any such officer. It will then be assessed
whether any trustee has caused breach of trust, misconduct or gross
negligence. Any loss caused to the public trust, will be determined by
the Charity Commissioner and the person causing such loss will be
directed to pay the amount of loss. This mainly related to financial
matter and quality of patient care in a charitable run hospital and health
care organization.
b. The Charity Commissioner is entitled to issue directions to the trustees

or persons connected to the trust for proper administration of the trust
property and income. The Charity Commissioner can also issue
directions to ensure that income of the trust is properly appropriated
towards the objects of the trust and that property of trust is not wasted
or damaged or being utilized by any trustee for his personnel gain
c. The Charity Commissioner has powers to suspend, remove or dismiss

any trustee if the trustee :
• Makes persistent defaults in the submission of accounts.
• Willfully disobeys any orders issued by the Charity Commissioner.
• Continuously neglects his duty or commits any breach of trust.
• Misappropriates any trust property.
• Is convicted of any offence involving moral turpitude.
! !150
The instances of above will be when trustees assert a hostile title is

involved in misappropriation of trust funds, in living an immoral life, or
involving the trust into unnecessary and protracted litigations. However,
mere errors of judgment, small neglects of duty or wrong use of discretion
are not considered as relevant for taking action under the above
provisions.
The Charity Commissioner can also appoint new trustees under certain
circumstances.
When there is a breach of a public trust or trust property is in danger, the

Charity Commissioner or persons having interest in the trust can file a suit
in the District Court after obtaining the consent of the Charity
Commissioner for an appropriate action including that of removal of
trustees. An order of injunction can also be obtained. For example in a
annual audit report of hospitable run by a charitable trust , if an auditor
finds some amount persistent defaults in day to day expenditure by one of
the hospital trustee ,purposefully done to get some personnel gain then he
can file a case against that trustee , after taking permission from charity
commissioner .
Contribution by public trusts to Public Trust Administration Fund:

All public trusts have to pay annually a contribution to the Public Trust
Administration Fund. This contribution is at a rate not exceeding five
percent of the gross annual income or receipts of the Trust. Some
deductions are allowed while computing the income or receipts.
Offenses and penalties:

Trustees committing certain acts like not submitting application for
registering a public trust, not sending a memoranda of immovable
properties belonging to public trusts, failure to submit change reports,
failure to keep regular accounts, failure to invest money as specified or
failure to comply with any directions given by the Charity Commissioner
are liable to get punishment of fine ranging from Rs. 100 to Rs. 2000.
3.5.2 Power of Charity Commissioner to Issue Directions to

Hospital Trusts:
Power of Charity Commissioner to issue directions to Hospital Trusts.

Several hospitals are started and run by charitable trusts registered under
! !151
the Bombay Public Trust Act. These trusts avail of facilities and assistance
in some conditions on such big trust hospitals to provide medical services
to poor or not so well off persons i.e. financially weaker section of the
societies. The Bombay Public Trust act was therefore suitably amended in
1985, as per the provisions.
The Charity Commissioner or any other competent authority has power to

direct public trusts maintaining hospital, nursing homes, maternity
hospitals, dispensaries or any other center for medical relief, to provide
medical facilities to poorer classes either free of charge or at concessional
rates.
These directions could be:
a. To reserve and earmark ten percent of the total number of operational

beds and ten percent of the total capacity of patients treated for medical
examination and treatment for indigent persons (persons whose total
annual income does not exceed three thousand and six hundred rupees
or such other limit as the State Government may specify from time to
time) free of charge. ( i.e. patients having BPL cards- below poverty line
card)
b. To reserve and earmark ten percent of the total number of operational

beds and ten percent of the total capacity of patients treated for medical
examination and treatment for weaker sections of people (person whose
annual income does not exceed rupees fifteen thousand or limit
specified by Government from time to time) for whom rates will be
charges as determined by the State Government. ( i.e. economically
backward peoples )
The officers authorized by State Government, or representatives of the

Charity Commissioner will be entitled to verify the implementation of the
above requirements by Hospital Trusts by visiting and inspecting and also
by called information and returns periodically. In Mumbai, this is done by
the officer concerned with the charity commissioner's office.
Any public trust, which is exclusively for medical relief and maintains a
hospital, dispensary or any other center for medical relief and has
! !152
• Received any grant of land or building or any nominal or confessional

rate from the State / Central Government or any local authority.
Or
• Has been given any exemption or permission by the State Government to

continue to hold any vacant land as per Sec. 20 or 21 of the Urban Land
Ceiling Act.
• Has been given any concession / exemption or relaxation of a substantial

nature from Development Control Rules for trust purposes.
• Has received or is receiving any loan or guarantee or any non-recurring

grant-in-aid or financial assistance from the state / Central Government
or any other local authority will be liable to follow the requirements of
the provisions mentioned regarding reservation of specified numbers of
patients for free treatment or at concessional rates.
• Trustees' right to receive re-imbursements of expenses
As per Indian Trust Act, trustees are not entitled to receive any
remuneration for the services rendered by them as they are supposed to
act gratuitously. However, if there is a provision in the trust deed
permitting trustees to receive remuneration, they can receive so. It is
therefore advisable to insert an appropriate clause in the trust deed
regarding remuneration of trustees. Similarly, the provisions regarding
reimbursements of expenses incurred by the trustees should also to be
specifically included so as to avoid complications later.
3.5.3 Charitable Hospital and Legal Provisions:
Section 41AA, The Bombay Public Trusts Act, 1950.

Power of Charity Commissioner and State Government to issue directions
in respect of hospital etc. to earmark certain beds etc., for power patients
to be treated free of charge or at concessional rates (i.e. at discounted or
subsidized rate)
1. Notwithstanding anything contained in any law for the time being in

force or in any instrument of trust or in any contract or in any
judgment, decree or 'order of any Court, Tribunal, Charity commissioner
! !153
or other competent authority, in the case of any State aided public trust,
whose annual expenditure exceeds five Lakhs of rupees, or such other
limit as the State Government may, from time to time, by notification in
the official Gazette specify, with a view to making essential medical
facilities available to the poorer classes of the people, either free of
charge or at concessional rates, it shall be lawful for the charity
commissioner, subject to such general or special order as the State
Government may, from time to time, issue in this behalf, to issue all or
any of the following directions to the trustees of, or person connected
with, any such trust, which maintains a hospital Including any nursing
home or maternity home), dispensary or any other centre for medical
relief (hereinafter in this section referred to as "the medical centre")
namely:-
a. having regard to the accommodation and facilities available to keep

admission to the medical centre open to any person without any
discrimination on the ground of religion, race, caste, sex, place of
birth, language or any of them : Provided that, where a medical
centre is exclusively for females, treatment for any males at such
centre shall not be insisted upon;
b. to reserve and earmark ten percent of the total number of operational

beds and ten percent of the total capacity of patients treated at such
medical centre, for medical examination and treatment in each
department of the medical patients seeking admission or treatment,
who shall be medically examined and treated and admitted, as the
case may be, free of charge;
c. to reserve and earmark ten percent of the total number of operational

beds and ten per cent of the total capacity of patients treated at such
medical centre, for medical examination and treatment in each
department of the medical centre, in such manner as may be
specified in the directions, for the weaker sections of the people
seeking admission for medical examination and treatment who shall
be charged according to such rates as the State Government may, by
general or special order, determine from time to time having regard to
the rates charged by the State Government in the corresponding
medical centers maintained by it;
! !154
d. to comply with such other incidental or supplemental requirements as

may be specified in the directions or in any general or special orders
issued there under : Provided that while issuing any directions as
aforesaid the Charity Commissioner shall take considering such
facilities as are already made available by any such medical centre
and having regard to the availability of such facilities may give
appropriate directions if any, consistent with and subject to the
percentage specified clauses (b) and (c).
2. (a) It shall be lawful for the officer duly authorized by the State
Government in this behalf, or for the Charity Commissioner by himself
or through his representative duly authorized by him in this behalf, to
verify the implementation of the directions given under sub-section (1)
to any medical centre, and for that purpose, visit, inspect and call for
information and returns periodically or otherwise.
(b)It shall be the duty of every trustee of, or person connected with, such
medical centre to comply with the directions issued under sub-section
(1) and to afford all reasonable facilities and assistance required by the
side officer or the Charity Commissioner or his representative for
verification of the implementation of such directions under clause (a)
and to comply with the requirements there under.
(c)In case there arises any dispute relating to the interpretation,

implementation or any matter whatsoever I respect of any direction
issued under subsection (1) it shall be referred to the State
Government, through the Charity Commissioner, for appropriate
directions.
3. Nothing in sub-sections (1) and (2) shall prejudicially affect any medical
facilities of whatever nature which any such State-aided public trust has
provided by virtue of any condition subject to which any grant,
exemption, concession etc. referred to in clause (a) of sub-section (4)
has been granted or received by it or otherwise and such medical
facilities which are in operation on the date of commencement of the
Bombay Public Trusts (Amendment) Act, 1984, shall continue as before
if they exceed the percentage of reserved and earmarked category.
! !155
4. For the purpose of this section -
a. "State-aided public trust" means a public trust exclusively for medical

relief or for medical relief and other charitable purposes, which
maintains a hospital (including any nursing home or maternity
homes), dispensary or any other centre for medical relief, and which -
i. Has received any grant of land or building, either on ownership

basis or on lease or lease and license at a nominal or concessional
rate, from the State Government or the Central Government or any
local authority; or
ii. Has been given by the State Government any exemption or

permission to continue to hold any vacant land under section 20 or
21 OF THE Urban Land (Ceiling and Regulation) Act, 1976; for
example seven hill hospital in Andheri -east region of Mumbai
suburbs has land at concessional on the above mentioned clauses.
iii. Has been given any concessions or exemption or relaxation of a

substantial nature from the Development Control Rules by any
competent authority for the purposes of the trust; or, for example
no fees is collected for the registration & stamp duty of a newly
constructed hospital in Mumbai suburbs on the above mentioned
clauses.
iv. Has received any loan or guarantee or any non-recurring grant-in-

aid or other financial assistance or is receiving any recurring grant-
in-aid or other financial assistance from the State Government, the
Central Government or any local authority; for example,
government can charge very nominal rate of taxes for loan given to
construct the hospital.
b. "Indigent person" means a person whose total annual income does

not exceed three thousand and six thousand rupees or such other
limit as the State Government may, from time to time, by
notification in the official Gazette, specify : ( also known as BPL
card holders)
c. "Person-belonging to the weaker sections of the people" means a

person who is not an indigent person, but whose income does not
! !156
exceed fifteen thousand rupees per annum or such other limit as

the State Government may, from time to time, by notification in the
Official Gazette, specify; (economically backward peoples)
d. It shall be the duty of the governing body (by whatsoever name

called) of every medical centre to get the category of a patient duly
verified and recorded in a register kept for the purpose in the
prescribed from before he is admitted or treated as a patient within
the reserved and earmarked percentage under sub-section (1) If
there is any dispute as to the category of a patient, it shall be
referred to the State Government, through the Charity
Commissioner, for appropriate direction.
5. Notwithstanding anything contained in the foregoing provisions of this

section, any person, who desires to undergo an operation for
sterilization or an intra-ocular operation or who desires to undergo any
operation or medical treatment specified by the State Government in
this behalf, shall not be entitled and shall not be allowed, to seek
admission in any hospital or other medical centre in the reserved or
earmarked quota provided under this section. Usually the operation for
cataract Sx, tubal ligation, vasectomies, cervical biopsy, incision and
drainage Sx, usually done as daycare procedures, where patient are
admitted and discharge in the same day.
SCHEME BY HON'BLE BOMBAY HIGH COURT:
Medical Treatment at a charitable hospital with concessional rate to

patients belonging to indigent (BPL card holder) and weaker section
(economically weaker section of society); Scheme approved by Division
Bench of High Court, Mumbai came into effect from 1.9.2006.
The Scheme for treatment to indigent patients and weaker section patients
for the purposes of Sec. 41 AA of the BPT Act, 1950, approved by the
Division Bench of High Court, Mumbai is as follows :-
Scheme:
1. The Public Charitable Trust registered under the provisions of the BPT
Act, 1950, which are running Charitable Hospital, including Nursing
Home or Maternity Home, Dispensaries or any other center for medical
! !157
relief and whose annual expenditure exceeds Rs. 5 Lakhs are "State
Aided Public Trust" within the meaning of Clause 4 of Sec. 41 AA.
2. The Public Charitable Trust covered by aforesaid Clause 1 shall be under

legal obligation to reserve and earmark 10% of the total number of
operational beds for indigent patients and provide Medical Treatment to
the indigent patients free of cost and reserve and earmark 10% of the
total number of operational beds at concessional rate to the weaker
section patients as per the provisions of Sec. 41 AA of the BPT Act,
1950.
3. In emergency, the Charitable Hospitals must admit the patient

immediate and provide to the patient "Essential Medical Facilities" for all
life saving emergency treatment and procedure till stabilization. Further
transportation to the Public Hospital would be arranged by such
Charitable Hospital, if necessary. The Charitable Hospitals shall not ask
for any deposit in case of admission of emergency patients.
4. That each Public Charitable Hospital shall create separate fund, which
may be called Indigent Patients' Fund. The money for the same will be
collected as from paying patients which amount to 2% of the gross
billing of paying patients. Thus total money or corpus collected in
indigent fund will be 2 % of the total gross hospital expenditure.
5. Donations that may be received by the Charitable Hospitals from

individuals or other Charitable Trusts or from any other source for
providing Medical Treatment to the indigent and weaker section patients
shall be credited to IPF Account.
6. The account of IPF shall have to be earmarked under the head of IPF
and same shall be reflected under the earmarked fund in the Annual
Balance Sheet (Schedule VIII Rules7 (1) of the BPT Rules).
7. The amount credited to the IPF Account shall remain at the disposal of
the respective Charitable Hospital and that amount shall be utilized only
for providing Medical Treatment to the indigent and weaker section
patients as provided hereinafter.
8. The Charitable Hospitals shall provide following non-billable services

free to the indigent patients (BPL card holder) as well as weaker section
! !158
patients (economically backward people). This includes the following

services :-
(a)Bed; (b) RMO Services ( i.e. on call doctor's call ); (c) Nursing Care; (d)
Food (if provided by the Hospital); (e) Linen; (f) Water; (g) Electricity
and (h) Routine Diagnostics as required for treatment of general
specialties; (i) House Keeping Services.
9. The following fact about indigent patients treatment in the Charitable

Hospitals are
a. shall provide Medical Examination & treatment in its each

departments of the hospital, totally free of cost
b. The medicines, consumables and implants are to be charged at the

purchase price to the Hospital
c. If Doctors forego their charges, then the same shall not be included
in the final bill of the indigent patients
d. The Charitable Hospitals shall not ask for any deposit in case of
admission of indigent patients.
10.The bill so prepared after deducting the payment made by the weaker
section patients shall be debited to IPF Account.
11.The Charitable Hospitals shall physically transfer 2% of the total

patients' billing (excluding the bill of indigent and weaker section
patients) in each month to IPF Account. The amount available in the IPF
Account shall be spent to provide Medical Treatment to maximum
number of indigent and weaker section patients. In case of surplus or
shortfall in the IPF Account of the month, the same shall get adjusted in
the subsequent months. In case there is imbalance in the credit of the
IPF (indigent patient fund) Account and the expenditure incurred in the
treatment of indigent and weaker section patients for more than six
Months, in such cases, Charitable Hospital may bring this type of
financial discrepancy to the Notice of the Monitoring Committee who
may issue appropriate directives to the concerned Hospital.
! !159
12.The Charitable Hospitals shall furnish information to the Office of the

Charity Commissioner regarding the amount collected in the IPF
account, treatment provided to the indigent patients and the weaker
section patients and their profiles prepared by the Medical Social Worker
and the amount spent for the respective patients along with the
information required to be sent under Rule 25-A of the BPT Rules, 1951.
13.The Trustees of the Charitable Hospitals shall not provide medical

facilities to their relatives, the employees of the Trust and their
dependants in the category of "indigent and weaker section patients”.
14.The Charitable Hospitals shall admit indigent or weaker section patients

coming to their Hospitals from any source or through Government
Hospitals, Municipal Hospitals etc. The procedure for admission of
patients shall be as provided in subsequent Clauses.
15.The following document is not required to verify or scrutiny of the

economic status of indigent patients admitted in The Charitable
Hospitals by their Medical Social Worker
a. Certificate from Tahsildar

b. Ration Card
c. Below Poverty Line Card
16.The Members of the Monitoring Committee for the treatment of indigent

patients in a charitable hospital located the in Greater Mumbai Region
shall be as follows:
i. Joint Charity Commissioner, Maharashtra State, Mumbai (Chairman).
ii. Joint Director of Health Services (Medical), Mumbai (Member

Secretary).
iii. Secretary / Nominee of Association of Hospitals in Mumbai (Member).
iv. Health Officer, Municipal Corporation of Greater Mumbai, Mumbai

(Member).
! !160
17.The Monitoring Committee at the District Level shall be as follows:-
i) Joint Charity Commissioner (regional Level) or his nominee

(Chairman).
ii) Civil Surgeon (Member Secretary).
iii) Health Officer of Zillah Parishad (Member).
iv) Representative of Charitable Hospitals in Districts (Member).
18.The Monitoring Committee shall hold its meeting once in a month and
monitor implementation of the Scheme by each of the Charitable
Hospitals. The Monitoring Committee shall also consider grievances of
the patients, if any, made and submit it's Report to the Charity
Commissioner.
19.In case of the breach of the Scheme and / or the terms and conditions
of Sec. 41 AA of the BPT Act, 1950 by any Charitable Hospitals, besides
the penal action as is provided u/s 66 of the BPT Act, 1950, the Charity
Commissioner shall make Report to the State Government
recommending withdrawal of the exemption granted to the concerned
Hospitals during the next preceding year in payment of contribution
towards PTA Fund and the amount of contribution towards PTA Fund by
recovered from the said Hospital.
20.The Charity Commissioner may also request the Government to

withdraw any other concessions / benefits given to the said Hospital.
The Charitable Hospitals, which face individual difficulties in meeting
objectives / obligation under this Scheme, shall be at liberty to apply to
the Charity Commissioner with all supporting documents who may
consider Suitable modifications, if a case for relief is made out.
21.The Charity Commissioner shall notify the list of Charitable Hospitals in

Greater Mumbai Region on the Notice Board of his Office and two
newspapers wide by circulated in Greater Mumbai, one in Marathi and
the other in English and the list of Charitable Hospitals in each District
on the Notice Board of the Office of the Joint Charity Commissioner and
the two widely circulated newspapers of the District.
! !161
22.Each of the Charitable Hospitals governed by this Scheme shall publish

the Scheme its Notice Board displayed at a conspicuous place of the
Hospital.
The Division Bench clarified that the following two points have been left
open to be reconsidered after one year of the implementation of the
Scheme by the Charitable Hospitals, viz., (1) the expenses incurred on
indigent / weaker section patients to be billed against IPF at lowest rate
charged by Charitable Hospitals to the lowest class of patients (2) the
restoration of the concessions, reliefs and the benefits which have been
withdrawn. Expert Committee headed by the Charity Commissioner.
Hon'ble Court would like the Public Charitable Hospitals to remind
themselves, the human service for which they came into existence, each
time they provide treatment and health service to the indigent and weaker
section patients.
The Scheme shall come into operation w.e.f. 1.9.2006. The Division Bench
directed that the Charity Commissioner to submit the Report indicating the
implementation of the Scheme by each Charitable Hospital for the period
from 1.9.2006 to 31.8.2007 and the action against such Hospitals, which
defaulted in full implementation of the Scheme, the Report shall be
submitted by 30.9.2007.
3.6 NOTIFIABLE DISEASE
Notifiable disease is any disease that is required by law to be reported to

government health authorities. The collection of information allows the
authorities to monitor the disease, and provides early warning of possible
outbreaks. For example health authorities have to document and furnish
details about the notifiable to government health agencies, even by the
private hospitals, so that timely action can be taken.
! !162
DETAILS OF NOTIFIABLE DISEASES IN INDIA:

AIDS CHICEEN POX CHOLERA
DENGUE FEVER DIPTHERIA HEPATITIS-A
HEPATITIS-B INFLUENZA LEPROSY
MALARIA MEASLES CEREBRO SPINAL FEVER
(Pertusis) PLAGUE POLIO
RABIES SMALL POX SCARLET FEVER
TETANUS TUBERCULOSIS TYPHOID FEVER
VIRAL ENCEPHALITIS MAL NUTRITION VITAMIN A DEFICIENCY
ANAEMIA IODINE DEFICIENCY
AIDS (acquired immunodeficiency syndrome) (also known as Slim

disease)
• Caused by a virus called Human Immune Deficiency virus, which is retro-

virus.
• There are about 13 million cases by 1999 Worldwide and 6.7 million in
South and South East Asia. The is pandemic and occurs worldwide
• It is transmitted from person to person through sexual contact, sharing

of virus contaminated needles and syringes, transfusion of infected
blood. So it is mostly seem in commercial sex workers, I.V.drug addicts,
truck drivers, or severely immunocomprimized individuals etc.
• Transmission through the contact with saliva, tears, urine not occurred.
Prevention:
• Have sexual intercourse with wife/husband only. Avoid sex with unknown
partners.
• Abstain from sexual intercourse with commercial sex workers.
• Use condoms during sexual acts, as a personnel protective devices
! !163
• Use of sterilized needles / syringes, disposable needles, SUD(single use

devices)
• Screening of blood and blood products- like whole blood, plasma,

platelets etc
• Care in handling, using and disposing of blood and blood products,

needles and sharp instruments.
• Disinfection of equipment contaminated. Always treat the used materials

& equipments with 2% sodium hypochorolite solutions.
CHICKEN POX
• It is an acute viral disease, with slight fever, malaise and a skin eruption.
• It is caused by a virus Herpes virus 3.
• Transmitted from person to person by direct contact by droplet or by air

borne spread, so it comes under the category of contagious diseases.
Prevention:
• Report to local health authorities.
• Exclude children from school, emergency rooms (or) Public places until
the vesicles become dry and become non- infective.
• Articles contaminated should be disinfected.
• Vaccine is recommended for susceptible persons following exposure to

virus.
• Vaccine may be given to the children aged 12 to 18 months and for the
• Children up to 12 years who have not had varicella.
• The vaccine has efficacy of 70-90%.
! !164
CHOLERA
• Caused by bacteria vibrio cholera.
• Affected person will have sudden onset of Profuse painless watery stools,
nausea, vomiting.( i.e. rice stool watery stool)
• If not treated in early stages, rapid dehydration, will lead to hypovolemic

shock and renal shut down will occur.
• Transmitted by ingestion of food or water contaminated directly or

indirectly. Usually have single epidemic curve and source of spread is
from common source of origin.
Prevention:
• Report to local health authority.
• Hospitalization of severe patients, for the correction of the dehydration
• Mild cases can be treated at house by use of oral rehydration solution.
• Treatment consist of:
• Rehydration therapy.
• Administration of antibiotics.
• Treatment of complications.
• Disinfection of fecal matters, vomitus and linens, articles used by the

patient.
• Vaccination is of little practical value in outbreaks.
! !165
DENGUE FEVER
• Caused by virus flavi virus.
• There will be sudden onset, fever for 3-5 days severe headache, muscles
pain, Joint pain, pain in the eyes, digestive problems and such features
mimic acute diarrhea
• In hemorrhagic disease, there will be bleeding nose, gum, hypovolemia

and abnormal blood clotting properties. Usually the platelet count
decrease drastically and becomes as low as 40,000 and in such cases, it
requires immediate admission in ICCU, as if not promptly treated, it can
leads to multiple organ failures. This is known as dengue hemorrhagic
fever.
• Transmitted by a mosquito Aedes aegypti.
Prevention
• Eliminating mosquito by net, protective clothing, repellants and avoiding

stagnation of water.
• Treatment is only supportive.
• Aspirin should not be used because it may cause bleeding in the

stomach.
• The hemorrhagic case has to be hospitalized.
DIPTHERIA
• Caused by bacteria corny bacterium diphtheria.
• It involves tonsils, pharynx, larynx, nose, skin, conjunctiva or vagina.
• There will be asymmetrical grayish, whitish membrane, nasal discharge.
• Transmitted by contact with a patient or carrier.
! !166
Prevention:
• Report to local health authority as it is highly contagious disease.
• Effective way of control is immunization with diphtheria toxoid. At

present it is given as DPT in 45 days, 75 days, and 105 days of age and
at 18 months as booster and as DT in 5 years of age in India.
• Disinfection of articles soiled by discharge of patient.
HEPATITIS
Hepatitis A:
• Start with fever malaise, anorexia, nausea and abdominal discomfort,

followed by jaundice.
• Caused by Hepatitis A Virus.
• Transmitted from person to person by the fecal - oral route. Common

source outbreaks related to contaminated water and food, infected food
handlers. For example eating road side fruits, sugar cane juice, pani puri
etc may help in disease propagation.
Prevention:
• Education about good sanitation and personal hygiene.
• Proper water treatment.
• Vaccines are available for 2 years of age and older.
Hepatitis B:
• Caused by Hepatitis B virus.
• Start with nausea, vomiting, abdominal discomfort, joint pain and

jaundice.
! !167
• Transmitted by blood and blood produce sexual contacts, infected saliva

and other body sections.
Prevention:
• Effective vaccines are available, such as hepatitis B Vaccine is given in

the schedule of zero (first day), then at one month and then at six
months interval from the starting day of vaccine schedule.
• Screening of blood and blood products for hepatitis B vaccines
• Adherence to sterilization procedures, such as the use of disposable

instruments
INFLUENZA
- Caused by influenza viruses.
- Characterized by fever, headache, and muscle pain, running nose, sore

throat and cough.
- Transmitted by airborne among crowded population, like school premises,

melas, cinema halls, yatras etc.
Prevention:
- Education about basic personal hygiene, especially danger of unprotected

coughs and sneezes.
- Vaccination may provide 70-80% protection.
- Always maintains at least one feet distance from the infected person
LEPROSY
- Caused by bacteria called mycobacterium leprae.
- It is the bacterial disease that affects skin and peripheral nerves and the
upper airway.
! !168
- It will be presented as hypo pigmented patches, thickened nerves and

deformities, so although it is not a contaminated disease, it usually
causes deformities and social stigma attached to it.
Prevention:
- Early detection of cases with white and shining patches without any
sense, so advised to pin prick test.
- Prompt treatment with multidrug.
- Health education.
- Environmental sanitation.
MALARIA
- Caused by parasite plasmodia such as vivax & falciparum
- Start with fever, rigors, headache and nausea, sweating, fever may occur
in an interval depending upon the types.
Prevention:
- Source reduction and control of larval stages by sanitary improvements.
- Early diagnosis with blood smear and treatment at the nearest Health
facility such as HSC/PHC.
- Health education
- Screening of blood, such as malarial spot test.
- Personal protective measures, such as use of mosquitoes net, repellant,

DDT spray etc.
! !169
MEASLES
- Caused by measles virus.
- Presented as fever, conjunctivitis, cold, cough and small spots with bluish
white centers a red base on the buccal mucosa.
- Transmitted by direct contact or airborne.
Prevention:
- Active vaccination with measles vaccine after completion of 9 months of

age among children.
- Children affected should be kept out of schools and in isolation.
CEREBRO SPINAL FEVER
- Caused by bacteria Neisseria gonorrhea.
- Occurs as sudden onset of fever, intense headache, nausea, vomiting,

stiff neck, rash and coma.
- Transmitted by direct contact, respiratory droplets.
Prevention:
- Report to local health authorities.
- Education on the need to reduce direct contact and droplet infection.
- Reduce overcrowding.
- Close surveillance of household, day care.
- Vaccines are available.
WHOOPING COUGH (Pertusis)
- Caused by the bacteria bacillus Pertusis
! !170
- Occurs as initiating cough which becomes repeated violent cough

followed by high pitched respiratory whoop.
- It occurs among children.
- Transmitted by direct contact with discharges.
Prevention:
- Report to local health authority.
- Active immunization which is now given along with diphtheria and

tetanus as DPT, triple vaccines
- Isolation of cases.
- Quarantine from schools for 21 days.
- Education of public about the contagious natures of the diseases
PLAGUE
- Caused by the bacteria Yesinia Pestis.
- Occurs as fever, chills, tiredness, muscle pain, nausea, sore throat and
headache.
- Enlargement of lymph nodes also occurs.
- Transmitted by the bite of infected fleas, vector for spread of plague.
Prevention:
- Report to local Health Authorities.
- Reduction of flea source, control of rates by spreading rodenticides
- Personal protection.
- Isolation of cases.
! !171
- Quarantine for 7 days. Therefore quarantine leave permitted in the

diagnosed cases of plague.
POLIO
- virus is which is responsible for the outbreak of Polio are Polio virus type
1, 2 3
- Occurs as fever, malaise, headache, nausea, vomiting, muscle pain,

stiffness of the back and nec
• The Polio is characterized by Acute flaccid paralysis
- Transmitted from person to person by fecal-oral route.
Prevention:
- Report to the local Health Authority.
- Active immunization with Polio vaccines. It is given as oral polio drop
- The dosage schedule for oral polio vaccine is

a. birth, 45 days, 75 days, 105 days
b. first booster dose at 9 months
c. second booster dose at 1 ½ years
- In view of eradicating polio, 2 rounds Pulse Polio vaccination was started

since from 1995. The child should also receive this pulse polio in addition
to the routine Immunization.
- Personal and environment hygiene.
RABIES
- Caused by virus Rabies virus.
- Followed by a bite or scratch of a rabies affected animal.
- Occurs as headache, fever, tiredness, indefinite sensory changes
! !172
- The main features is excitability, aerophobia (fearness to the speedy air),

difficulty in swallowing, hydrophobia (fear of water).
- Without treatment death occurs due to respiratory paralysis.
Prevention:
- Register, license and vaccinate all dogs.
- Treat the wound immediately by thorough cleaning with running tap

water for at least ½ hours. The wound should not be sutured. It should
be always kept open.
- Effective vaccination is available for the both exposed and non-exposed

persons.
SMALL POX
- It is acute infectious disease, caused by Variola virus.
- Occurs as sudden fever, malaise, headache, prostration, severe back

ache, abdominal pain and vomiting.
- A deep-seated rash developed with face and extremities.
- Transmitted from person to person.
Prevention:
- Report to local Health Authority.
- Vaccine is available.
- This disease was eradicated globally in 8th May, 1980 and WHO
declared the global eradication of small pox. It is the only disease
for which no national program me is implemented by government of
India. After the global eradication of small pox, two potential source of
poxvirus infection in human being are
! !173
1. accidental infection with laboratory -associated stocks ( i.e. the officially

kept stocks of small pox virus)
2. Infection with animal pox virus, for example human monkey pox.
TETANUS
- Acute infection Caused by the exotoxin of bacteria clostridium tetani.
- Occurs as painful paroxysmal spasm of the voluntary muscles Spasm of

the masseters (lock jaw or trimus), spasm of facial muscles (risus
sardonicus), muscles of the back and neck (opisthotonus) - A common
first sign in older children and adult is abdominal rigidity.
- Transmitted by wound contaminated with soil, feces.
- It occurs in new borne which is called as neonatal tetanus if safety

methods are not followed during delivery.
Prevention:
- Immunization with tetanus toxoid. It is monovalent vaccine , stored

between 4 to 10 degree C. it dosages schedule is first two dose at 1 to 2
months, 3rd dose after one year and 4th dose after 5 years.
- In the Pregnant Women dosage schedule of tetanus toxoid is 2 doses of

tetanus toxoid.
- At 16-20 weeks and 24 weeks of pregnancy.
- To prevent neonatal tetanus.
- For Infants:
- included in DPT and to be given at 45 days, 75 days, 105 days and 1 1/2
years of birth.
- DT at fifth year.
- TT at 10th year and once in five years.
! !174
- Thorough cleaning of the wound. AVOID FREQUENT T.T. INJECTION,

WHENEVER YOU GET INJURED. If the wound is less than 6 hours old,
clean non penetrating with the negligible tissue damage, then nothing is
required.
• TUBERCULOSIS
- Caused by bacteria mycobacterium tuberculosis.
- It affects lungs, ( pulmonary TB) , and can also infect intestine, brain,
bones and joints lymph glands( extra pulmonary TB)
- Occurs as cough more than 3 weeks, fever, loss of weight, loss of

appetite.
- Transmitted as airborne droplet.
Prevention:
- Education about the importance of early diagnosis and prompt treatment.
- Improvement in housing ventilation.
- Environmental sanitation.
- BCG Vaccine at the time of birth.
- To combat the tuberculosis now, revised National Tuberculosis Control

Programme is being implemented in 1962 through Govt.PHCs / Hospitals
which ensures the successful treatment with the aim to reduce TB in the
community level so that it is no longer public health problem.
- RNTCP program me was launched in 1992 with the help of GOI, WHO,
World bank with the aim to achieve
A. 85% success rate by DOS treatment

B. augmentation of case finding by improving the quality of sputum
microscopy to detect at least 70% of the estimated cases
C. through the involvement of NGO
- New concern in Tuberculosis management is
! !175
A. MD Rx TB ( multi-drug resistance TB)

B. neonatal TB (TB in new born)
C. TB & HIV infection ( TB in a sero-positive patients)
TYPHOID FEVER
- Caused by bacteria salmonella typhi.
- Occurs as sustained fever, severe headache, tiredness, splenomegaly,

slowing of heart beat (Bradycardia), rose spots on the trunk.
- Transmitted by contaminated food and water.
Prevention:
- Proper hand washing and other personal hygiene.
- Drinking of chlorinated, purified and boiled water.
- Control of flies and maintenance of sanitary barrier
- Preventing typhoid patients and carriers from handling of foods.
- Using latrines for defecation as the cases of chronic carrier stage are very
common.
- Vaccination is also available.
MAL NUTRITION
- Protein energy Malnutrition is an important health and nutrition problem

in India. It is the important cause of childhood diseases and death,
permanent impairment of physical and mental growth. It found in 1-2%
of pre-school age children.
- Proteins are rich in milk, meat, eggs, cheese, and fish. They also found in
pulses, cereals nuts, etc.
It is mainly due inadequate intake of food both in quality and quantity.
Infections like diarrhea, respiratory infection, measles and intestinal
worms will aggravate the malnutrition. It is very important in the
! !176
children to correct immediate salt and electrolyte imbalance and continue

breast feeding in neonates.
- It is divided as mild, moderate and severe grades. The severe grades

may be classified into two categories marasmus and kwashiorkar.
- PEM is characterized by low birth weight, poor growth and mortality in

children between 12 to 24 months, and is the leading cause of death (up
to 30% in the children in the children under 5 years of age.
- The common features are muscle wasting, fat wasting, and edema, low
weight for height, mental changes, poor appetite, frequent diarrhea, skin
changes, and hair changes. If a child has low weight for height, then it is
known as nutritional wasting or emaciation. A child who is less than 70%
of the expected weight -for-height is classified as severely wasting.
- Alternative methods of growth monitoring are height-for-age, weight-for-

height, mid arm circumference. The last two are independent of age and
are particularly useful when age is not known.
- The first indicator of protein energy malnutrition is under-weight for age.

NEW BORN BABIES gains at least 500 gram weight per months. ( i.e.
Growth chart or road - to - health chart first designed by David Morley
and later modified by WHO)
Prevention:
1. Education and distribution of supplements to pregnant and breast

feeding women.
2. Encouraging breast feeding.
3. Improvement in the quality and quantity of family diet.
4. Family Planning.
5. Education about nutrition - as part of care to pre-school health

programme, balwadi program me, mid-day meal program me
6. Immunization
! !177
7. Environmental sanitation.
8. Care of the pre-school child (1-4 yrs) which represent 12% of the
general population of India. November 14 is observed as universal
children's day.
VITAMIN A DEFICIENCY
It is important Vitamin for normal vision. It is rich in liver, eggs, butter,
cheese, whole nut, fish, meat, green and yellow fruits and vegetables,
green leafy vegetables.
In deficiency, there will be:

- night blindness
- dryness of conjunctiva and xeropthalmia (also known as nutritional

blindness), mostly seen between 6 months to 6 years of the age.
- Foamy spots on conjunctiva (Bitots' spot)
- dryness of cornea.
Prevention:
- Improvement in diet.
- Reduction of infections like, diarrhea, measles.
- Administration of single dose of 2,00,000 International units (IU) of

Vitamin A oil orally every 6 months to pre-school children (1-6 years)
and 1,00,000 IU to children between 6 months to one year of age.
Vitamin D deficiency
Rickets - vitamin D deficiency leads to rickets in the children, between 6

months to 2 years of the age and osteomalacia in the adult.
- Negroes also suffers from vitamin D deficiency can filter off up to 95% of
UVrays, thus leading to vitamin Deficiency.
! !178
ANAEMIA
- Mainly due to malnutrition, deciding factor is blood HB level, most

common is iron deficiency, but may be due to folate deficiency
and vitamin B12 deficiency
Anemia occurs mainly due to iron deficiency. It is found especially among

adolescents, young children, pregnant women and lactating women.
It occurs due to inadequate intake of iron and other infections like hook
worm and malaria.
The foods rich in iron are meat, liver, fish, and cereals, green leafy
vegetables, and nuts, jaggery.
The person suffering from anemia will have, tiredness, lack of interest in
doing work, breathlessness, pale colored face, palms, pale tongue and
eyes, reduced work capacity, etc.
Prevention:
- Intake of iron containing foods.
- Control of infection like malaria and hookworm.
- Iron and folic acid (IFA) supplementation.
- During pregnancy and lactation, IFA Tablets supplied freely. One tablet
contains 60mg of elemental iron given for 2 to 3 months, until HB level
returns to normal.
- For adolescents girls the IFA tablets are supplied by teachers, Volunteers
and Self help group under adolescent anemia Control Programme
- GOI launched national nutrition anemia prophylaxis program me

and the major beneficiaries of this program me are pregnant
mothers, lactating mothers, and the children below 12 years of
the age.
! !179
IODINE DEFICIENCY
Iodine is required for the synthesis of the thyroid hormones.
The sea foods are best sources of iodine. They are found in smaller
amounts in milk, meat, vegetables and cereals, etc.
The deficiency will lead to:
- Goiter (Enlargement of thyroid glands, which is found as swelling hooks

like butterfly in lower part of the front of the neck).
- Decreased intelligence, hearing defects, speech defects in children.
- Myxedema
- Cretinism
- Spontaneous abortion, miscarriage.
Prevention:
- Use of iodized salt. Iodization of the salt is most widely prophylactic

measures to control endemic goiter. In India, the level of iodization is
fixed under prevention of food adulteration act and should not be less
than 30ppm at the production level and not less than 15ppm of iodine at
the consumer level.
- The National Institute of Nutrition, which developed the concept of

fortification of the edible oil with the iodine, is located at Hyderabad
- Iodized oil, given IM, prepared by the national institute of nutrition

Hyderabad or fortification of iodized oil in safflower or safola oil.
- Increased intake of sea food.
- Health Education, manpower training in goiter control work including

legal enforcement, public education and mass communication.
! !180
The Iodize salt pocket, an important campaign to fight against goiter, will
be shown with logo of '' smiling sun''
3.7 NATIONAL AND INTERNATIONAL HEALTH CARE

SYSTEM
This topic reviews the organization and operation of the National and
International health care system. A solid understating of the system is
essential for all participants: provider, consumer, payer and policy maker.
The system uses resources such as facilities (e.g. hospitals), personnel
(e.g. physicians) and technology. The challenge that exists today in many
countries is to reach the whole population with adequate health care
services and to ensure their utilization. The large hospital which was
chosen for the delivery of health services has failed in this regard. It serves
only a small part of the population that too, within a small radius of the
building and the services rendered is mostly curative.
The health care system is intended to deliver health care services. It

constitutes the management sector and involves organizational matters.
The universal goal of health care system is to ensure adequate access to
quality care at a reasonable price. No nation however has enough
resources to meet all the needs for all health care. Therefore an
assessment of the resources, their proper allocation and efficient utilization
are important considerations for providing efficient health care services. To
achieve Health for All, WHO has set a goal of expending 5% of Country's
GNP on health care.
Different countries have different categories of health man power. In India,

apart from the doctors and nurses, other categories of health manpower
are multipurpose workers, trained dais, health assistants, pharmacists,
laboratory technicians, ophthalmic assistants etc.
! !181
AMERICAN HEALTH CARE SYSTEM: STRUCTURE & FUNCTION
Instituted Care: The Hospital:
• In the USA, these can be classified as governmental, not for profit, and
proprietary (for profit) on the basis of ownership.
• Government hospitals, in turn, are classified as federal, state and local.

Federal hospitals serve groups eligible as the result of some type of
legislative entitlement. For example, Veterans Administration hospitals
serve certain eligible Veterans. State facilities generally are either mental
or tuberculosis hospitals.
• Local government hospitals include city or country hospitals that provide

care to those individuals without the resources to pay. They are often
large and overburdened, and are usually affiliated with a medical school
that provides all or a portion of their medical staff.
• Not for profit hospitals are public corporations exempt from taxation.
Mostly are government run and NGO'S sponsored hospitals.
• Stockholders, who receive a return on their equity as in other publicly

held companies, own proprietary hospitals. For example corporate run
hospitals who are IPO are sold in trade market and general public buys
the share as per their performance in terms of earnings or profit they
make.
Ambulatory Care:
• Ambulatory care includes a wide range of practitioners, settings and

services for the 'walking' or non-institutionalized patient. Ambulatory
care services traditionally have been in their offices and in patients'
homes and by public clinics operating primarily for poor and medically
indigent patients.
In '' Day Care Procedure ''
A. the patients are admitted in morning at around 8 a.m. and discharged

by 8 p.m.
! !182
B. not included as indoor patients
C. they are not included in head count as the indoor patient's at count
done at mid night.
• Development in medical practice, especially increasing specialization and

expansion of technology has also spurred the group practice movement.
For example the concept of multispecialty hospital with different specialty
functioning less than one umbrella. Two or more physicians share more
complex and expensive facilities, equipment, and personnel for operating
these equipments and other resources. These multi-specialty groups
could provide patients with more of their health care under one roof and
thus reduce problems of physical access to care.
• The United States spends over 13.5 percent of its GDP (1993) on health
care that is nearly a trillion dollars every year. Most individuals in US
have some health insurance.
• Govt. Insurance Plans in USA: In addition to private insurance plans,

two major public insurance plans operate in US viz., Medicare and
Medicaid of the Social Security Act. Medicare is a federal programme. The
eligibility criteria for the people in the USA to be included for the Govt
insurance plan are generally are
• those people aged 65 years and above,
• the permanently and totally disabled, or
• With end stage renal disease.
• Medical is a joint federal-state programme. It provides a minimum set of

services to recipient that include inpatient and outpatient care,
physicians office care, laboratory, x-ray, family planning services, mental
health benefits and early periodic diagnostic screening and treatment
services.
! !183
Structure and Function of the Public Health System in the United

States of America:
• The Department of Health and Human Services (DHHS) is the primary

site of public health activities.
• The operational arms of the Public Health Service (PHS) include the
National Institutes of Health (NIH), the Health Resources and Services
Administration (HRSA), the Food and Drug Administration (FDA), the
Agency for Toxic Substances and Disease Registry (ATSDR) and the
Substance Abuse and Mental Health Administration (SAMHA).
STATE Health Agency Activities:
• In each state, there is a State Health Agency (SHA), the activities of

which vary considerably. Generally they look after Medicaid, mental
health services and some environmental health issues, such as food
services, recreation facility inspections etc.
• The organizational relationships between SHA and LHD- local health's

department also vary considerably. In 11 states, the SHA directly
operated the LHD, Sixteen states are totally decentralized with local
government operating the LHD, while another 16 states have a mix,
where large jurisdictions run their own LHD, but the state directly runs
smaller, more rural LHDs.
There is great disparity in types of services offered. The activities of the

local health department in USA are
A. Offer childhood immunizations (96%) and run well child clinics (79%)
B. Concerned with Communicable disease control and is involved with an

infectious disease surveillance system
C. enforces state environmental laws (e.g. Restaurant inspections);

regulate private water and sewerage systems
D. is responsible for tuberculosis control, human immunodeficiency virus

counselling and testing.
! !184
Health care system in the United Kingdom:
• The planning, management and the delivery of health services in England

depends on an agency relationship between the Secretary of State for
Social Services (Minister) and the Department of Health and Social
Security (DHSS) on the one hand operating at the national level, and on
the other hand the National Health Service (NHS) operating sub-
nationally through the Regional Health Authorities (RHA) and the District
Health Authorities (DHA).
• There are 14 RHAs, which are responsible for strategic planning and
resource allocation, monitoring of DHAs and some common services.
Staff headed by Regional Team of Officer, Nursing Officer, Works Officer
and Treasurer Looks after the day-to-day administration of RHA. There is
a governing body known as Regional Health Authority (RHA) consisting of
18-25 members from local authorities, health professions, teaching
faculty, and general backgrounds, these members are unpaid and
appointed by the Minister.
• There is a District health Management Team, in United Kingdom which

operates through NHS, direct to the DHA, which consists of District
Administrator, Medical Officer, Nursing Officer and Finance Officer. There
is a district governing body known as District Health Authority (DHA)
consisting of 17-20 members, appointed by RHA or local authorities,
drawn from locality and covering same broad range of interests as
members of RHAs. Districts cover between 100,000 and 50,000 people,
normally based on the services of one district general hospital.
• Districts are the basic unit for the day-to-day running of hospital and
community health services within their boundaries. This does not include
services such as general practitioner, dental, ophthalmic and
pharmaceutical services, which the Family Practitioner Committee (FPC)
provides.
• Apart from these governmental facilities, there are private institutions

that also provide health care. There are private clinics, dispensaries and
hospitals that provide medical care.
! !185
3.8 HEALTH CARE DELIVERY SYSTEM IN INDIA:
In India, the health care delivery system broadly consists of the following
sectors or agencies.
1. PUBLIC HEALTH SECTOR :
a. Primary Health Care
• Primary health centers ( first point of contact between government

health agencies and medical infrastructure )
• Sub-Centers
b. Hospitals / Health Centers
• Community Health Centers (first referral point of contact), usually at

block or taluka place level.
• Rural hospitals
• District hospitals
• Teaching hospitals, attached to medical college and hospital.
• Specialist hospitals, for example regional institute of ophthalmology,

national institute of mental health, regional institute of orthopedics,
central cancer training institute.
c. Health Insurance Schemes
• Employees State Insurance Scheme (ESIS)
• Central Government Health Scheme (CGHS)
d. Other agencies
• Defense
• Railways
! !186
• Indian armed force
• Shipping corporation of India
2. PRIVATE SECTOR :
a. Private hospitals, polyclinics, dispensaries and nursing homes.
b. General Practitioners, and clinics, Private hospitals include hospitals run

on profit basis, no loss-no profit basis ("Trust" hospitals), - Guajarati
Mahan sagh hospital, parsi general hospital and corporate hospitals- like
Apollo hospitals, Fortis group of hospitals,
3. VOLUNTARY HEALTH AGENCIES like Indian red cross society ,

hind kusht nivaran sangh, I.C.C.W, family planning association
of India
3.9 NATIONAL AND INTERNATIONAL HEALTH PROGRAMME
NATIONAL HEALTH PROGRAMMES - The following international

agencies are providing technical and material assistance in the
implementation of the National programme
A. WHO, UNICEF, UNFPA,

B. World bank,
C. SIDHA, DANIDA, NORAD USAID
The major national health programmes are:
1. National Malaria Eradication Programme.

2. National Filaria Control Programme.
3. National Leprosy Eradication Programme.
4. National Tuberculosis Control Programme.
5. National AIDS Control Programme.
6. National Iodine Deficiency Disorders (IDD) Control Programme.
7. National Programme for Control of Blindness.
8. Reproductive and child Health Programme.
9. National Guinea Worm Eradication Programme
! !187
The other National Heath Programmes are:
• National Guinea-Worm Eradication Programme.

• National Cancer Control Programme.
• National Diabetes Control Programme.
• National Filaria Control Programme.
• National Mental Health Programme.
• National Family Welfare Programme.
• National Water Supply and Sanitation Programme.
• Minimum Needs Programme.
• Development Programmme.
• Integrated Rural 20 point programme.
INTEGRATED HEALTH CARE IN INDIA:
Keeping in view the WHO goals of "Health for All" by 2000 A.D., the Govt.
of India evolved its National Health Policy based on primary health care
approach.
1. Village Level : Primary health care is delivered at the village level by
i. Village health Guide
ii. Local Dai
iii. Anganwadi worker
• The village health guide-VHG is expected to carry out the treatment of

simple ailments and activities in first-aid, mother and child health
including family planning, health education and sanitation.
• The local dais is expected to conduct safe home deliveries in the village
and propagate small family norm.
Anganwadi Worker runs the Anganwadi under the ICDS (Integrated Child
Development Services) Scheme launched by GOI , which focuses on for
a. Children under 6 years

b. Nursing and lactating mothers
c. Pregnant mothers
! !188
• She provides health check-up, immunization, supplementary nutrition,

health education, non-formal pre-school education and referral services
for the beneficiaries.
2. Sub-centre level: The sub-centre is the peripheral outpost of the

health care delivery system in rural area, which established for every
5000 population. One male and one female multipurpose health worker
man each sub-centre. The services offered at the sub centre are mother
and child health care, family planning and immunization.
3. Primary health center (PHC) level: These are established for every
30,000 rural population in the plains, and 20,000 populations in hilly,
tribal and backward areas.
Functions of the PHC are :
4. Community Health Centre (CHC) level : Some of the PHCs have

been upgraded to function as Community Health Centre, each covering
a population of 80,000 to 1.20 lakh (one in each community
development block). The staff at the CHC includes specialists in surgery,
medicine, OBG and pediatrics, 7 nurse mid-wives, dresser, pharmacist,
laboratory technicians, radiographer, 2 ward boys, dhobi, 3 sweepers,
mali, chowkidar, aya and peon.
PRIVATE AGENCIES:
There are a large number of private medical practitioners providing health
care to a large section of the population. The general practitioners
constitute majority of the medical profession. Most of the practitioners tend
to congregate in urban areas. They provide mainly curative services. There
are private clinics, dispensaries nursing homes and hospitals, functions and
activities of these private practitioners are regulated by some statutory
bodies like Medical Council of India. The services of the private agencies
are available to those who can pay.
VOLUNTARY HEALTH AGENCIES:

There are numerous voluntary agencies working in the field of health in
India. There are voluntary agencies providing comprehensive care and
leprosy services, anti-tuberculosis services, immunization, emergency
services, MCH, family planning services, health education etc. Thus the
services provided by these agencies are varied. Culturally they are more
! !189
acceptable to the society. They supplement the work of the government

agencies. They include both national and international health agencies.
Some of the agencies working in India are:
1. Indian Red Cross Society : It carries out relief work, milk supplies,
care of the soldiers during war, family planning service, blood bank and
first aid services etc.
2. Hind Kusht Nivaran Sangh : Carries out anti leprosy activities like
health education, training of medical workers, conducting research and
field investigation, medical publications, etc. It also provides financial
assistance to various leprosy homes and clinics.
3. Indian Council for Child Welfare: Through its network of state

councils and district councils it is committed to secure for India's
children "opportunities and facilities by law and other means" for the
overall development of children.
4. Tuberculosis Association of India: its activities include training of all

categories of health personnel in tuberculosis, health education, act as a
consulting body, hospital services, organizing conferences, seminars etc.
5. Bharat Sewak Samaj : One of its important activities is improvement

of sanitation in villages.
6. The Kasturba Memorial Fund: It is mainly concerned with the

improving the lot of women, especially in the villages, through gram
sevikas.
7. Family Planning Association of India: It is identified with the family

planning activities in India.
8. The All India Blind Relief Society: It co-ordinates different

institutions working for the blind. It also organizes eye relief camp.
9. Rotary Clubs: its contribution to immunization against polio has been

noteworthy.
10.Professional bodies: The Indian Medical Association, All India Dental

Association, Indian Public Health Association etc. These bodies conduct
! !190
annual conferences, public journals, arrange scientific sessions and

exhibitions, foster research, set up standards of professional education
and organize relief camps during periods of natural calamities.
11.International agencies: The Rockefeller Foundation, Ford Foundation,

CARE etc.
12.Health Programmes in India: The Govt. of India has launches

National Health Programmes for the control / eradication of some
sanitation, nutrition, control of population, and rural health.
The Indigenous Systems of Medicine in India:
The prominent ones are:
i. Ayurvedic System
ii. Homeopathic System
iii. Unani Tibb System
iv. Siddha System
• Most of the practitioners of these systems practice in rural area.
• The treatment prescribed is relatively cheap. These systems are deeply

rooted in the Indian culture.
• At present the doctor-population ratio in the country is 1:2148.
• There are 45 nurses / midwives and 6.8 beds per one lakh
population.
• There are now 23,666 primary health centres and 2962 community
health centres.
! !191
International health Programme:
• Health and disease have political or geographical boundaries. Disease in

any part of the world is a constant threat to other parts. For example
recently there is outbreak of Ebola virus originated in Africa but it is
posing threat to all over the world.
• In the 14th century, a procedure known as "quarantine" was introduced

in Europe to protect against the importation of plague. International
conferences aimed at standardizing quarantine regulations and
procedures have been held since 1851. The Pan American Sanitary
Bureau (PASB) was established in 1902 primarily to coordinate
quarantine procedures in the American States. The establishment of the
Office International D' Hygiene Publique in 1907 followed this, which was
the precursor of the Health Office of the League of Nations. In 1948 the
World Health Organization assumed the functions of the Health Office.
• Political unrest and warfare in many parts of the third world disrupt
public health services, adding to the risk that dangerous epidemics will
occur and spread. For example consider the case of drought and famine
in Somalia and is posing dangerous threat to all its citizens.
• There are new emerging infections like HIV, Ebola virus, hepatitis C and E
viruses, Vibrio cholera 0139, SARS pneumonia, swine flu like illness, etc.
The natural history of many of these infections is not completely known.
• There is the problem of re-emerging infections like tuberculosis (silica

TB, atypical TB, HIV & TB,) malaria (Urban malaria), dengue hemorrhagic
fever, influenza, Neisseria gonorrhea, Salmonella typhi which are re-
emerging as minor infections threatening the health of the world.
• Agencies involved in International Health :
The government sponsored international agencies include several
1. United Nations (UN) organizations, the best known of which is the
• World Health Organization (WHO).
! !192
• Other UN agencies with well defined and important health related roles
are UNICEF, the United National Development Programme (UNDP), the
Food and Agriculture Organization (FAO), the United Nations Fund for
Population Refugees (UNFPA), international labor organization (I.L.O.).
• These bilateral agencies include U.S. agency for International

Development (USAID), the Swedish International Development Authority
(SIDA), the Canadian International Development Agency (CIDA),
DANIDA and many others.
• There are several non-governmental agencies like the International Red

Cross, Rock Feller Foundation, and Cooperative for Assistance and Relief
Everywhere (CARE), Ford Foundation. Milk Bank, Aga Khan Foundation,
etc.
• Different activities of international health are
1. Quarantine: - defined as the limitation of freedom of movement of such

well person or domestic animals exposed to communicable diseases for
a period of time not longer than the longest incubation period of the
disease in such manner as to prevent than usual incubation period of
the disease in such a manner as to prevent effective control with those
not so exposed.
2. It is usually implemented at major airports, ports, railway station,

roadways etc to prevent the spread of disease, reservoirs of disease or
the vectors of the diseases.
3. Segregation and the concept of quarantine leave for working employees.
4. Travelers guide: - all travellers exposed to the risk of yellow fever or

passing through endemic zones of yellow fever must possess a valid
international certificate for vaccination against yellow fever. If no such
certificate is available then the traveler is placed on quarantine, in a
mosquito proof ward for 6 days from the date of leaving infected area.
5. Notification of diseases: - under IHR, the following diseases are made

notifiable to WHO in Geneva and are subjected to international
surveillance. These diseases are
! !193
• Cholera
• Plague
• Yellow fever
• Polio
• Rabies
• Louse borne typus
• Influenza
• Malaria
• salmonellosis
WORLD HEALTH ORGANIZATION:

The World Health came into being on 7th April 1948, celebrated each year
as "World Health Day'. The objective of the WHO is "the attainment by all
peoples of the highest level of health". In recent years, two major policy
developments have influenced the WHO. First, the Global strategy for
health for All by 2000.
Activities of WHO:
1. Communicable disease control of HIV, tuberculosis, malaria, yaws,

yellow fever, viral hemorrhagic fevers, leishmaniasis, trypanosomiasis,
sexually transmitted disease, zoonoses etc. WHO's Global Programme
on AIDS became a direct UN agency in 1993. WHO has made at least
one contribution of lasting historical importance, i.e. the eradication of
small pox that was accomplished in 1979. WHO aspired to eradicate
poliomyelitis, Dranculosis and to eliminate leprosy in the very near
future. Immunization against common diseases of childhood (Expanded
Programme on Immunization) is now a priority programme.
2. Non-communicable disease control of cancer, cardiovascular diseases,

genetic disorders, mental disorders drug addiction nutritional disorders,
mental disorders drug addiction nutritional disorders and dental disease.
3. Family Health: which includes maternal and child health care, human
reproduction, nutrition and health education.
4. Occupational and Environmental Health Problems: These are protection

of the quality of air, water and food, health conditions of work, radiation
protection etc.
! !194
5. Health Statistics: Publishing a wide variety of morbidity and mortality

statistics relating to health such as Weekly Epidemiological Record,
World Health Statistics, both quarterly and annual, International
Classification of Diseases.
6. Programmes dealing with Bio-Medical Research, education and training

of health personnel, information and technology transfer and quality
control of biological products and pharmaceutical products.
7. Collaboration with other organizations : Such as with UN, U.S. Centers

for Disease Control and Prevention, Public Health Laboratory Service in
UK, the Canadian Addiction Research Foundation and several others.
The headquarters of WHO is in Geneva. There are six regional

organizations. The South East Asia regional office is in New Delhi. The work
of WHO is conducted at the headquarters in Geneva, in the six regional
officers, at country officers, and in the field. All offices have permanent
staff, reinforced by temporary advisers, short-term consultants and
technical experts.
Unfortunately, the work of WHO has been severely compromised by

defaulting donor nations. The United States is by for the largest defaulter
with outstanding debts of about $1.4 billion in 1996.
UNICEF:
UNICEF (United Nations International Children's Emergency Fund) was
established as one of the specialized UN's agencies in 1946. Now the
agency is known as "U.B. Children Fund" Its headquarters is in New York,
while its regional office for South Central Asia Region is in New Delhi.
UNICEF is active in the field of child immunization, child nutrition, family

and child welfare, child education etc.
The Rockefeller Foundation's programme includes the training of

competent medical teachers and research projects. At present grant-in-aid
to selected institutions and research projects. At present the foundation is
actively supporting the improvement of agriculture, family planning, rural
training centers and medical education as well.
! !195
The Ford Foundation has been active in the development of rural health
services and family planning.
CARE provides emergency and long-term development assistance. In India

it is supporting the Integrated Child Development Scheme (ICDS) and the
development of programmes in the areas of health and income
supplementation.
DANIDA is providing assistance for the development of services under

National Blindness Control Programme.
Health Problems of Developing Nations:
The term "developing" and "developed" country are loosely used in relation
to gross national product (GNP). The World Bank classifies nations into low
income economies with per capita GNPs of less than $350 in 1991 US
dollars; lower-middle income nations with per capita GNPs up to $2500;
upper middle income nations with per capita GNPs up to $3500; and high
income nations with per capita GNPs above $3500. About 3.1 billion
people, well over half the world's population, live in countries in the
poorest group; Over 80 percent of people live in nations that collectively
have less than 20 percent of the world's wealth and productive capacity.
Many health problems of the developing world arise from the interaction of
three forces; infectious diseases, especially of infants and young children,
malnutrition and uncontrolled population growth.
Infectious diseases take a terrible toll. There are about a billion cases each
year of some of the common infectious diseases - diarrhea, respiratory
infections, malaria, schistosomiasis, tuberculosis and intestinal parasites.
More than a million deaths occur each year from malaria alone in Africa.
About 3 million children die each year from diarrhea, 4 million die from
respiratory infections and other 3 million from a combination of
malnutrition and vaccine-preventable diseases, especially measles. About
150,000 deaths are due to neonatal tetanus, while about half a million
maternal deaths occur each year in the developing world.
By the end of 1999, there were 35 million people living with HIV / AIDS in
the world. AIDS kills about 2.8 million people annually.
! !196
The developing countries are experiencing the problem of population

explosion. Their population is relatively young; 35 percent are below the
age of 15 years. High population density favours the spread of
communicable diseases; so population pressure not only drains food
resources and leads to wide spread malnutrition, but also sets the stage for
epidemics. Malnutrition enhances susceptibility to infection and infection
enhances metabolic demand for protein and caloric intake, so there is a
vicious circle in the infection / malnutrition complex that cause many
premature deaths in developing countries. Thus the three problems:
population pressure, malnutrition, and infection constantly reinforce one
another.
There is a gap in the life expectancy at birth between developed and

developing countries. While lower life expectancy and lower infant and
child mortality rates characterize the developed countries, the opposite is
true of developing countries.
Apart from these, in the developing countries, there is an increase in the

environmental damage, occupational diseases and accidental deaths. The
solutions to many health problems in developing nations are elusive, at
least in part because of poor planning inadequate organization and
misplaced values. The human factors are inequitable access to health care,
higher priority given to treatment than prevention, uneven distribution
among the health professions, inappropriate investment in high technology,
lack of health information, lack of trained primary health care workers,
administrative deficiencies and lack of communication facilities.
! !197
Summary:
Transplantation of Human Organs Act, 1994 - It is a law to prohibit

the sale of kidneys and to punish those involved in illegal transplantation of
human organs. Thus "The Transplantation of Human Organs Act" came into
existence in 1994.
Aim of the Act: This law is enacted to provide for the regulation or
removal, storage and transplantation of human organs for therapeutic
purposes and for the prevention of commercial dealings in human organs
and for maters connected with them.
The punishment under the Act of two years imprisonment extending to the
maximum of seven may not be enough of a deterrent to those doctors who
can perform organ transplants clandestinely and earn lakhs of rupees from
the nefarious trade. The fine of Rs. 10,000 to Rs. 20,000 for a middle man
is laughable because a tout can earn as much on a single sale.
Pre-Natal Diagnostic Techniques (Regulation and Prevention of

Misuse) Act, 1994 -
Government of India enacted "Pre-Natal Diagnostic Techniques”

(Regulation and Prevention of Misuse) Act in 1994, PNDT Act 1994 came
into force with effect from January 1, 1996 prohibits the tests rather it
permits the same in certain situations with certain conditions for detecting
the genetic disorders of the foetus with a condition not to disclose the sex
of the foetus to the woman or her relatives in any form or way.
The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)

Amendment Act 2002 came into force with effect from 14th February,
2003. PNDT Act 1994 now stands renamed as "The Pre-conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act”.
The Act provides for the prohibition of sex selection, before or after
conception. It regulates the use of Pre-Natal Diagnostic Techniques such as
ultra sound for the purpose of detecting genetic abnormalities or other sex
linked disorders in the foetus. The purpose is to prevent misuse of such
techniques for sex determination which lead to elimination of the female
fetus and thereby create a gender imbalanced society.
! !198
The Bombay Nursing Homes Registration Act 1949 - An Act to

provide for the registration and inspection of nursing Homes in the
Province of Bombay and for certain purpose Connected therewith.
1. "Maternity home" means any premises used, or intended to be used, for

the reception of pregnant women or of women in or immediately after
child birth;
2. "Nursing home" means any premises used or intended to be used, for

the reception of persons suffering from any sickness, injury or infirmity
and the providing to treatment and nursing for them, and includes a
maternity home; and the expression "to carry on a nursing home"
means to receive persons in a nursing home for any of the aforesaid
purposes and to provide treatment or nursing for them.
Biomedical Waste (management & Handling) Rules, 1998 - Under

the powers confirmed by section 6, 8 and 25 of the Environment
(Protection) Act 1986, the Central Government has made the Bio medial
Waster (Management & Handling) Rules to safeguard the public and health
care workers from the risk arising due to Bio medical waste.
The Rule casts obligation on every occupier of an institution generating bio-

medical waste, which includes a hospital nursing home, clinic, dispensary,
veterinary institutions and animal house, pathological laboratory, blood
bank by whatever name called to take all steps to ensure that such waste
is handled without any adverse effect to human health and the
environment.
Trust Act - The law regarding trusts has assumed considerable importance
in recent times. More and more charitable trusts are being registered to
avail of facilities like getting contributions from donors as well as for
getting income tax exemptions.
A public trust can be registered as a society under the Societies

Registration act. Any seven persons can join together to form a society
with memorandum of association and a constitution.
If the trust intends to make additional construction for its objects it is not
necessary to take permission, however if the said construction is to earn
more income than it is necessary to obtain prior consent of the Charity
! !199
Commissioner. The trustees cannot borrow money for or on behalf of the

trust except with the previous consent of the Charity Commissioner.
Trustees cannot borrow money for their own use from any property of the
public trust.
Trustees committing certain acts like not submitting application for

registering a public trust, not sending a memoranda of immovable
properties belonging to public trusts, failure to submit change reports,
failure to keep regular accounts, failure to invest money as specified or
failure to comply with any directions given by the Charity Commissioner
are liable to get punishment of fine ranging from Rs. 100 to Rs. 2000.
Notifiable disease is any disease that is required by law to be reported to

government authorities. The collection of information allows the authorities
to monitor the disease, and provides early warning of possible outbreaks
The health care system is intended to deliver health care services. It

constitutes the management sector and involves organizational matters.
The universal goal of health care system is to ensure adequate access to
quality care at a reasonable price. No nation however rich has enough
resources to meet all the needs for all health care. To achieve Health for
All, WHO has set a goal of 5 per cent expenditure of a country's GNP on
health care. Different countries have different categories of health man
power.
Ambulatory care includes a wide range of practitioners, settings and

services for the 'walking' or non-institutionalized patient. Development in
medical practice, especially increasing specialization and expansion of
technology has also spurred the group practice movement.
Keeping in view the WHO goals of "Health for All" by 2000 A.D., the Govt.
of India evolved its National Health Policy based on primary health care
approach.
Employees State Insurance Scheme: This scheme runs by contributions

employees, employers and grants from Central and State Governments.
The scheme covers employees drawing wages not exceeding Rs. 6500/-
per month.
! !200
Under "Armed Forces Medical Services" integrated and comprehensive

health care consisting of preventive, promotive and curative services and
provided to the defense personnel and their family members free of cost.
There are numerous voluntary agencies working in the field of health in

India. There are voluntary agencies providing comprehensive care and
leprosy services, anti-tuberculosis services, immunization, emergency
services, MCH, family planning services, health education etc. Some of the
agencies working in India are Indian Red Cross Society, Hind Kusht Nivaran
Sangh, and Indian Council for Child Welfare, Tuberculosis Association of
India, and Bharat Sewak Samaj.
National Health Policy of India has the following elements. A greater

awareness of health problems and means to solve using in and by the
communities, Supply of safe drinking water and basic sanitation using
technologies that the people can afford , Increasing concentration of the
rural health infrastructure, Establishment of a dynamic health management
information system (HMIS) to support health planning and health
p r o g ra m m e i m p l e m e n t a t i o n , C o n c e n t ra t e d e f f o r t s t o c o m b a t
malnutrition ,Research into alternative methods of health care delivery and
low-cost health technologies ,Greater co-ordination of different systems of
medicine.
Review Questions:
1. Describe PNDT act and its objective?
2. What do you understand by BioMedical Waste, Describe its colour

codifications and disposal procedure
3. What is the powers of Charity Commissioner to Issue Directions to

Hospital Trusts
4. What do you understand by Charitable Hospital and Legal Provisions?
! !201
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
! !202
MEDICO LEGAL ISSUES
Chapter 4
Medico Legal Issues
4.0 Medico legal cases
4.1 Medico legal cases

4.1.1 Types of Medico Legal Cases
4.1.2 Medico Legal Case in Private Hospitals
4.1.3 Nature of Injury
4.1.4 Writing a Medico Legal Case
4.1.5 Breaking the Death News
4.1.6 Death Certificate
4.2 Consent
4.2.1 Introduction
4.2.2 Meaning of consent
4.2.3 Negative Consent
4.2.4 Authority of consent (Who can give consent)
4.2.5 Provisions for consent under law
4.2.6 Types of Consent
4.2.7 How consent should be obtained
4.2.8 Right to refuse consent
4.2.9 Advance directives
4.2.10 Can Consent be done away
4.2.11 Consent of maternity patients
4.3 Confidentiality
4.3.1 Privacy violations in healthcare
4.3.2 Situations where disclosure of personal health information, is
permissible
4.4 Legislation
4.5 Case Laws related to the confidentiality of medical records

4.5.1 Right to Privacy vs. The Right to Know
4.5.2 Personal health information and wrongful termination
! !203
MEDICO LEGAL ISSUES
4.6 Medical Records

4.6.1 Introduction and definition of the medical records
4.6.2 Importance's of the medical records
4.6.3 Usefulness of Medical Records
4.6.4 Procedures for the completion of the medical records
4.6.5 Characteristics of a good medical record
4.6.6 Classification of medical records
4.6.7 Main Components of Medical Records
4.7 Forms
4.7.1 Brief Case Sheet
4.7.2 Medical History Form
4.7.3 Physical Examination Column Or Sheet
4.7.4 Laboratory Reports
4.7.5 X-Ray Reports
4.7.6 Operation Reports
4.7.7 Tissue examination request ion form
4.7.8 Doctor's orders sheet
4.7.9 Progress Report
4.7.10 Graphic Charts
4.7.11 Nurse's Notes
4.7.12 Obstetrical And Newborn Records Forms
4.7.13 All Forms - General Characteristics
4.7.14 Short Forms
4.7.15 Re-admissions forms
4.7.16 Signature
4.8 Medical certificates

4.8.1 Death Certificate
4.9 Release of the information contained in the Medical Record
4.10 Best Evidence

4.10.1 Filling of Records / Preservation of Medical Records
4.11 Dying declaration

4.11.1 Introduction
4.11.2 Evidentiary value of dying declaration
! !204
MEDICO LEGAL ISSUES
4.12 Medical negligence

4.12.1 Introduction
4.12.2 Law of Torts
4.12.3 The Duty of Care
4.12.4 Breach of Duty of a doctor
4.12.5 Damage Suffered by the Patient
4.12.6 Error of Clinical Judgment
4.12.7 The Burden Of Proof
4.12.8 Contributory Negligence
4.12.9 Common Forms of Medical Negligence
4.12.10 Liability of Hospital
4.12.11 Criminal Liability
4.12.13 Civil Liability
4.13 Legal issues in relation to Health care in India

4.13.1 Health Legislation in India
4.13.2 Historic Judgment in Medico legal Work
4.14 Medical Council Bill

4.14.1 The Indian Medical Council Act, 1956
4.14.2 Constitution and composition of the Indian medical council:
4.14.3 Mode of election
4.14.4 Restrictions or nomination and membership
4.14.5 Incorporation of the Council
4.14.6 Term of office of President, Vice-President and Members
! !205
MEDICO LEGAL ISSUES
4.0 MEDICOLEGAL ISSUES
4.1 MEDICO LEGAL CASE (M.L.C)
Cases requiring medical treatment, by the same time involve information

to the law enforcing authorities such as intimation to be given to the police
is called a medico legal case.
• According to the Indian evidence act, 1872 which was amended 1952,
and 1961, medical records are important legal document and accepted
documentary evidence for medico-legal cases.
• Accurately and adequately written good medical record serve as a '' big
shield of defense in different types of M.L.C. cases
4.1.1 Types of Medico Legal Cases
• All Road Traffic Accidents -- such as highways road accident, so GOI is

providing free ambulance service to shift the patients with in the golden
period to definite place of treatment so that timely medicine and
emergency resuscitative care can be provided to needy patients.
• All Rail Traffic Accidents - such Indian railway accident, blast in Mumbai
local trains
• Burns -usually deep seated and third degree burns
• Scalds - usually caused by moist heat
• Hanging - such as suicide, homicide, death by hanging in the police

custody.
! !206
MEDICO LEGAL ISSUES
• Electrocutions - given in police custody, leading to death, death in

industrial fire out break by short circuits
• Poisoning - suicide, homicide, dowry death, organo phosphorous

poisoning
• Drowning - accidental, suicidal,
• Bomb Blasts and Explosions - Mumbai bomb blast in 1993 and mass
casualties
• Vitriol age
• All Air and Sea Accidents - like air crash accidents
• Any other cases having legal implication
• Assault - Known; Unknown - sodomy, gang rape
• Legal Intervention (injury caused by police action-lathi charge, stampede

in kumbh melas etc )
• Natural Disasters - Earthquakes, Lightning, Volcanoes, Floods, Building

collapse- like flash floods in Uttrakhand in 2013, Tsunami of Tamil Nadu
in 2005
• Molestations - Rape, Kidnapping, Husband Wife beating- domestic

violence, Child abuse.
• Inhalation of Gas and Vapors- MIC & Bhopal Gas Tragedy
• Fall from Height - Actress Divya Bharati death
• Brought Dead (Cause of death not known) in a hospital premises
• Industrial Accidents
• animal bite / snake bite etc (Sec. 350, 351 IPC)
• Bullet Injury - death in police firing , especially in J&K
! !207
MEDICO LEGAL ISSUES
• Hijacking - Like IC 814 HIJACK
• Hostage - like terrorist seized the entire cinema hall in Moscow and kept
every one as hostages.
• Possession of Fire Arms with intent to injure - arms and weapons

recovered by Indian military in an encounter with terrorists
• Anything related to Smuggling - smuggling of cocaine, marijuana,

hashish, charas etc.
4.1.2. Medico Legal Case in Private Hospitals:
Formalities for a M. L. C.:
• Entry likes Name / Age / Sex / Date / Time / I.P. No. / Hosp. No. / Type
of M. L. C. is done in the main Emergency Register. ( MLC Registration)
• All M. L. C's are registered in the central medico legal register in hospital
casualty / or serious patients are admitted in the hospital.
• Case is examined and case sheet written by the duty Casualty Medical
Officer.
• MLC Accident Register (A. R.) Prepares three copies -
1. One copy for the hospital record
2. Second copy given to patient or their relatives
3. Third copy is used for Police Intimation (P.I)
• The original P. I. from should be dispatched to the assigned Police Station

as quick as possible (not later than 24 hours) and the signature of the
receiving Police Officer should be obtained as the evidence of intimation
to the concerned police department.
! !208
MEDICO LEGAL ISSUES
In most of the Government hospitals, police stations are inside the hospital
premises like JJ hospital located in Byculla area of Mumbai has its own
police station. In private hospitals - dispatch the accident register and
police intimation to nearby police station.
- All hospital documents must be signed by the patients or their relatives.
- Always retains the identification, which will help in determining the

identity of a person with their left thumb impressions.
- Why to preserve the left thumb impression of the patient
1. Left is least used by most of the person, as most of the persons are
right handed.
2. So the marking of the left are better preserved, which can be

documented in by taking left thumb impression.
4.1.3 Nature of Injury:
i. Simple
ii. Grievous
iii. Opinion Reserved
• In the case of opinion reserved, the nature of wound is given in the

'Wound Certificate' at a later date with expert opinion i.e. after
consultation with general surgeons. Orthopedics, plastic surgeon, neuro-
surgeon, ophthalmic surgeon etc. When a wound certificate requisition is
given to the medical records department either from patient or by police,
the wound certificate is obtained from Casualty Medical Officer who has
written the accident register.
• If the nature of injury is grievous, it should be explained with details of

grievous wounds. According to Sec. 320 (IPC- Indian penal code ) the
following injuries are grievous :
! !209
MEDICO LEGAL ISSUES
a. Emasculation (Depriving a male of masculine vigour)

b. Permanent privation of sight of either eye or disfigurement and loss of
visual reserve.
c. Permanent privation of hearing of either ear.
d. Privation of any member (means an organ) or joint.
e. Destruction or permanent impairing of the powers of any member of
joint.
f. Permanent disfiguration of the head or face.
g. Fracture or dislocation of bone or tooth.
h. Any hurt which endangers life or which causes the victim to being
severe bodily pain or unable to follow his ordinary pursuits, i.e. routine
work for a period of twenty days.
4.1.4 Writing a Medico Legal Case: (different cases)
1. Road Traffic Accident:
1. Write as Alleged R.T.A. involving car or car / car or cycle / bus or car /
bus or lorry / bus or scooter / skid or gall from two wheeler - mode of
sustaining injury or hit and run or etc.
2. Write vehicle number, if known- as proof of evidence and helps in

locating the culprit.
3. Write the following details in the case file( medical record ):
! !210
MEDICO LEGAL ISSUES
!
Identification Marks:
It is better to note down at least 3 identification marks. If only two

identification marks are recorded there may be a chance of losing one of
the marks due to amputation of the body part or after healing of surgical
wound.
The following marks can be taken for identification:
1. Congenital- present from birth: Birth marks, mole nevus, web fingers
or toes, talipes, cleft palate, hare lip etc.
2. Acquired- developed after birth: Scars, tattoo marks, deformities, old

amputations etc.
2. Assault:
Write as Alleged assault by known / unknown / single person / a group,
like mob involved with communal violence outbreak. Assault by hand /
knife / weapon, by throwing hand grenades etc.
3. Railway Accident:
• Write as Alleged Railway track accident (or) Alleged to injure in a train
accident / Collision between 'X' train and 'Y' train / Derailment, bomb
explosion.
! !211
MEDICO LEGAL ISSUES
4. Poisoning:
• Write as Alleged to have consumed poison- like consumed rat poison or

taken bagon spray insecticide -organophpphorous poisoning / tablets like
overdose sleeping tablets
• Sent urine / blood / gastric contents/ viscera, remains of the food items
found at scène of crime for forensic examination.
5. Drowning:
• Write as alleged drowning in fresh water / sea water / in water tank /

ponds / wells etc
• In the drowning cases, always look for lung specimen during autopsy as
one can find foamy and bloated lung features as all alveoli are filled with
water.
6. Burns:
• Write as alleged to have sustained burns i.e. site of burns/ no of burns /

degree of burns etc.
• Always write burns injury in percentage (Burns chart preferred)
• Always take history from the patient if the patient is conscious.
• If patient is unconscious take the history from the nearest relative.
7. Natural Disaster:
• Alleged to have injured by earthquake / lightning / volcanoes / flash

floods/ tsunami etc.
• In such types of untoward events, usually there is MASS CASULATIES.
• The term mass casualties will apply to a number more than five.
8. Molestations:
! !212
MEDICO LEGAL ISSUES
9. Rape:
Write as Alleged by rape by known / unknown / single person / group such

as the case of gang rape.
Patient should be examined by the Gynecologist. All patients' belongings

such clothes, undergarments', pubic hair samples, patients finger nails has
to be preserved.
10.Kidnapping:
• Write as Alleged to have kidnapped by known / unknown / single

person / group.
11.Wife / Husband beating: a case of domestic violence
• Medico Legal is registered provided one of them insists on it.
• Write as Alleged to have beaten up by husband / wife.
• Role of witness to confirm the occurrence such episode in the family is

very important.
12.Child Abuse: a case of battered baby syndrome
• Write as Alleged child abuse by known / unknown / single person /

group.
• A type of domestic violence.
• Usually involves cases of master beating their servants, or step mother

beaten her step children.
13.Electrocution:
• Write as Alleged electrocution.
• Always mention about entry and the exit wound.
! !213
MEDICO LEGAL ISSUES
• A method of police custodial procedures and overdoing can lead to

custodial death and can lead to police inquest.
4.1.5. Breaking the Death News:
• Prepare yourself presentable before leaving the resuscitation room.
• Ensure that you are speaking with the correct relatives of the deceased.
• Introduce yourself who are to the patient's (deceased) relatives.
• Take the relatives to a separate room and ask them to sit before breaking
the news.
• Speak slowly; keep the sentences short and non-technical while

communicating the information.
• Never use the words like 'Passed away' or 'Gone to better place' etc.
4.1.6 Death Certificate:
Following are the facts to be taken in consideration while issuing death

certificates.
• Should be issued only by a Registered Medical Practitioners (RMP).
• No certificate is to be issued without examining the person.
• In cases of any suspicion of foul play, death certificate must not be

issued and the matter should be brought to the police authority.
• Physician must be sure about the cause of death before issuing the death
certificate.
• During issuing the Death Certificate using terms such as "Cardio

Pulmonary Arrest" or "Respiratory Failure" are not acceptable. Remember
everyone dies of "cardiopulmonary arrest". So listing "cardiac arrest" or
"respiratory arrest" as the cause of death is not sufficient. Instead, a
notation stating the events leading to death, such as "respiratory arrest
secondary to hanging" is required.
! !214
MEDICO LEGAL ISSUES
• During issue of death certificate for the 2nd time due to any reason, the
term 'Duplicate' must be mentioned.
• Physician should not issue death certificate if he has not attended the
patient during his last illness at least in the fortnight (14 days) before his
death.
• As per the central Birth and Death Registration Act, 1969 which came
into effect from 1st April 1970, it is obligatory to inform the matter to the
registering authority about the cause and nature of death with a copy of
Death Certificate. The limit for registering the event of birth is 14 days
and the limit of registering death is 7 days. In case of default, a fine of
Rs 50 /- will be imposed.
• Under no circumstances, a medical practitioner will sign a blank

certificate before death of the patient and leave the task of filling in the
details to someone else.
• Whoever issues or signs any certificate relating to any fact knowing or

believing that such certificate is false in any material point, shall be
punished in the same manner as if, he gave false evidence (under Sec.
197 IPCS).
• Issuing of false certificate by registered medical practitioner may lead to

erasure of the name of the practitioner from the medical register.
• So it is wise to maintain a register which will contain details of the

medical certificate issued by a medical practitioner.
Death Certificate by Government:
Death certificate is issued by Municipality or Corporation as per the

death register.
International death certificate - IDC:-
• Recommended by WHO
• Source of collecting mortality data
! !215
MEDICO LEGAL ISSUES
• The concept of 'underlying cause of death is' the essence of IDC.
• The death certificate is issued in three components.
a. Disease or conditions directly leading to death\
b. Antecede dent cause or morbid conditions if any giving rise to death
c. Contributing to the death but not related to disease or conditions

causing it.
INTERNATIONAL FORM OF MEDICAL CERTIFICATE OF CAUSE OF DEATH
!  
! !216
MEDICO LEGAL ISSUES
Sudden Infant Death Syndrome (SIDS) Deaths:
Any infant who dies where you have reason to suspect Sudden Infant
Death Syndrome (SIDS) should be reported to the medical examiner for
autopsy because the diagnosis of SIDS cannot be established without an
autopsy. Such as cases of increased incidence of female infanticides,
especially prevalent in Rajasthan, Haryana U.P etc.
4.2 CONSENT
4.2.1. Introduction
The legal precedent for informed consent in the United States arises from a
court case in 1914 in New York State in which a patient with a tumor
underwent an operation to which he had not agreed. Then New York Justice
Benjamin Cardoza wrote in his opinion "Every human being of adult years
and sound mind has a right to determine what shall be done with his own
body and the surgeon who performs operation without his (patient's)
consent commits assault for which he is liable in damages." This landmark
opinion established the concept of consent as an integral part of the most
fundamental precept for respect of a person's bodily integrity.
The actual phrase "informed consent "entered American jurisprudence in

1957 in a California medical malpractice case. In Salgo V Stanford
University, patient's legs were paralyzed when his physician performed
aortography to locate an obstruction in his abdominal aorta. Apparently,
the treating physician had not counseled the patient at the risk inherent in
the procedure. In its decision, the court held that "a physician violates his
duty to his patient and subjects himself to liability if he holds any facts
which are necessary to form the basis of an intelligent consent by the
patient to the proposed treatment.”
• Consent is fundamental and established principle in the Indian law.
• Every person has the right to determine what shall be done to his body.
• Self-defense of body (IPC sections 96 to 102, 104, 106) provides right to

the protection of bodily integrity against invasion by other. All medical
procedures, including examinations, diagnostic procedures and medical
research on patients potentially acts of bodily trespass or assault (IPC
! !217
MEDICO LEGAL ISSUES
351), in the absence of consent or statutory sanction. Treatment and

diagnosis cannot be forced upon anyone who does not wish to receive
them except in statutory sanction.
• In India at present legal cases concerning absence of consent are rare.

Such cases will increase in the coming years as medical techniques
become more advanced, complicated, medical care becomes more
widespread and level of awareness and education of population
increases. Now days , more and more peoples are covered by employer
health scheme and take treatment in a corporate hospital or are covered
by their independent health insurance scheme and by paying for the
treatment they take, they are labeled as consumer. So their legal rights
are monitored by consumer protection act 1984.
4.2.2. What consent means
Consent means free, voluntary agreement or compliance. Sec.13 of

Indian contract act lays down that two or more persons are said to be in
consent with each other when they agree upon the same thing in same
manner. In consent there are three separate but correlated elements that
are voluntariness, capacity and knowledge.
1. Voluntariness suggests willingness of patient to undergo treatment.
2. Capacity means a degree of ability of the patient to understand the

nature and consequences of treatment offered.
3. Knowledge means that sufficient amount of information about the

nature and consequence of treatment has been disclosed to patient.
These three elements must be present in the consent, only then it is legally
valid.
4.2.3. Negative consent: - Section 90 of IPC defines consent in

negative terms. As per this section, any consent given under the
following five circumstances will not be true consent but will be treated as
force consent. Analysis of this section shows that consent is not true
consent if it is given -
! !218
MEDICO LEGAL ISSUES
1. By a person under fear of injury or,
2. By a person who is under misconception of the facts and person who

obtain consent knows or has reason to believe that or consent was
given in consequence of such fear/ misconception.
3. By intoxicated person or,
4. By a person who is of unsound mind or, unable to understand the nature

and consequences of that to which he gives consent.
5. By a person who is below the age of 12 yrs.
6. Or if the patient is under the influence of alcohol or drugs
4.2.4. Who can give consent?
Adulthood in India is achieved at the age of 18 yrs in India but person

above the age of 12 yrs can give consent for medical treatment. In
Western countries like UK a person below the age of 16 yrs cannot give
consent for medical treatment without the prior permission of parent or
guardian unless the child is sufficiently mature of understanding. Thus in
UK a girl below the age of 16 yrs cannot give consent to take contraceptive
pills. The Indian penal code and other law reforms are silent on this aspect.
For a person under 12 years of age, or of unsound mind i.e. lunatic , his/
her guardians / person in whose lawful custody he / she is, can give
consent (89 IPC).
Local parents - in a emergency involving children, when their parent or

guardian are not available consent is taken from the person in charge of
the child for example school teacher can give consent for treating child,
who become sick during picnic away from the home town or the consent of
the principal of a residential school. Or child becomes very serious during
class and in such cases, the child to be rushed to nearby hospital for
treatment.
The age for consent for medical treatment is not officially laid down. There
are obscure provisions made in Indian penal code section (IPC87 and 88),
which refers to the validity of consent, which may occur from any act done
in good faith and for individual benefit. Perhaps, these provisions are not
! !219
MEDICO LEGAL ISSUES
specifically directed at medical treatment. When both the IPC (Sections 87

& 88) are combined, one can conclude that there is an implication that
parental consent is necessary for medical treatment or surgical procedures
on the minor. No one can give consent for any treatment on behalf of
adult, but it is advisable to be on the safer side that the doctor should take
the consent of the next of kin of the patient. Local guardian can give
consent on behalf of a person only if the treatment is an emergency one.
When an Unconscious / Unknown patient is admitted in hospital with no
relatives or local guardian accompanying, and if the patient requires life
saving procedures or surgery to be performed, then the consent can be
taken from medical superintendent / In charge of hospital.
Pathological autopsy should not be carried out without the consent of next
of kin of the deceased. In case of consent for donation of organ after death
the will of the deceased is enough, for example even if the patient has not
pledged to donate his cornea after his death, his own son or daughter can
give consent for the same and eye ball can be enucleated within 6 hours of
the death, provided valid death certificate is available or is ready. Not
taking consent is considered as deficiency in medical services under the
section 2(1) of the Consumer Protection Act. Consent of one's spouse is
not necessary for the treatment of other. Husband or wife has no right to
refuse consent to any operation, which is required to safeguard the health
of the partner.
4.2.5. Provisions for consent under law
• Sections 87 to 91 of Indian penal code deals with consent.
• Section 88 of IPC lays down that an act is not offence if it is not intended
or not known to be likely to cause death, which causes any harm to a
person from whose benefit it is done in good faith with his consent to
suffer it. Thus after a valid consent if surgeon operates on patient and
patient dies on the operation table, then the surgeon cannot be held
guilty of murder.
• Persons who are non-qualified in medical profession are not allowed to

take the plea of this section, as they are not said to do the act in good
faith. IPC 52 says that an act is only done in good faith if it is done with
due care and attention.
! !220
MEDICO LEGAL ISSUES
• Section 91 of IPC serves as a corollary to sections 87 to 89. It states that

the exceptions contained in sect 87 to 89 do not extend to acts, which
are offences independently of any harm, which they may cause to the
person, giving consent. Thus causing miscarriage (unless caused in good
faith for the purpose of saving the life of the women) is an offence
independently of any harm which it may cause or be intended to cause to
the women and the consent of the women or of her guardian for causing
such miscarriage does not justify the act ( 91 IPC ) .
• Barring physical examination, any medical procedure requires written

consent. It is important to note that whenever a male surgeon or male
gynecologist or male physician is examining a female patient, always
maintain the privacy, keep female staff nurses nearby or in the absence
of female staff nurses, call the female relatives of the patients. Never do
per vaginal examination in unmarried female patients as there is risk of
rupture of hymen and loss of virginity.
• Therefore precautions, a male gynecologist should take, if he is examine

a female patient are :-
a. always do medical examination in the presence of female staff nurse
b. If a female staff nurse is not available, then call the female relatives of
the patients. If there is no female relative's accompanying with the
patient, then call the female father or his brother inside the examination
room.
c. never do unnecessary per vaginal examination in a unmarried female
d. If the MTP or sterilization or hysterectomy is to be performed, the

procedures must be explained to both partners, as it will affect the child
bearing capacity in the future.
• Written consent should refer to one specific procedure and not blanket
permission on admission to hospital. It is on the safest side to take the
consent of a spouse if the operation destroys or limits sexual function for
example partial amputation of penis in the cases of penile carcinoma.
• While not legally necessary it is good medical practice to consult with

relatives of patient in patient's best interest and ones this has been
! !221
MEDICO LEGAL ISSUES
established then doctor can continue to give treatment in good faith.

Consultation, consent and clinical confidence will never put the doctor in
any tort fessors cases.
• Prisoners and persons released on bail can be treated without their

consent in the interest of justice of society. A registered medical
practitioner can examine an accused by using reasonable force if the
examination is requested by the investigating police officer not below the
rank of police sub inspector (CrPC 53).(Force should be applied by
police.) Under subsection 2 of CrPC 53 which lays down that, whenever
the person to be examined is female the examination shall be made only
by or under the supervision of female registered medical practitioner. The
obtaining of such evidence, it has been held, is not violation of article
20(3) of constitution, which grants protection against self-incrimination,
it was held so by high court in Bombay vs. Kathi Kalu case.
Consent of the patient cannot be defense to medical practitioner in

negligence. Consent of the patient cannot be defense to medical
practitioner in the cases of medical negligence. It can only provide defense
to the medical practitioners, when it is done with
a. Reasonable care
b. Utmost precautions
c. Good faith
d. With high degree of competency
• Whole law of negligence assumes the principle of consent. If found under

the influence of alcohol, then consent of such person will not be valid, so
it is always better to obtain consent from guardian / parents.(Exception-
Section 53 CrPc and Bombay prohibition act.).
! !222
MEDICO LEGAL ISSUES
4.2.6. Types of consents
Medical profession in India practices following types of consents.
a. Implied consent: - is one, which is not written but legally effective.

When patient comes to doctor's consulting room or hospital and waits
for the doctor, implied consent is presumed. Such implied consent only
goes to history taking and ordinary medical examination like inspection,
palpation and auscultation; it does not cover the consent for
examination of private parts of the patient or matters such as vein
punctures or injections or any major intervention.
b. Expressed consent: - ( also known as specific consent )
• If any material risk is involved the specific or expressed consent must be

obtained. The above discussion, thus, shows that in certain
circumstances an implied consent may not be considered as sufficient. In
the case of Male v. Hopkins it was observed that it was not negligence of
a doctor, who had the patients consent for general treatment, to
prescribe a particular drug known to have side effects, without first
obtaining specific consent. The observation was that it was a proper
exercise of his discretion to prescribe the drug even with the risk
involved. However, negligence did not arise in his failure to carry out
recommended tests for the presence of other side effects, once the
prescription of the drug had commenced.
• A good case of implied consent came up before the National Commission

where one of the witnesses had stated that once the consent for excision
biopsy through thoracotomy was given, the consent for removal of the
mass was implied. The Commission observed (Para 19) that the surgeon
need not limit the operation to diagnostic purpose but can proceed with
the same for curative purposes also.
• The express or specific consent may be oral or written.
• An oral consent is legally valid, but it is preferred to obtain written

consent for major procedures because there is risk involved that the
patient, in the case of oral consent, may at later stage deny that any oral
consent was given by him. If, for whatever reason, only oral consent is
possible, it is appropriate to make an entry in the patient's clinical record
! !223
MEDICO LEGAL ISSUES
which may be of use in future if any action is brought on this count and
this entry in the clinical record may afford corroborative evidence to
support the defense taken by the medical practitioner concerned. In a
Tamil Nadu case it was observed that in all cases where a treatment
consists of certain dangerous instruments, it is the duty of medical
authority to take the consent of patient, preferably in writing. However,
in that case an oral consent was taken and the Commission regarded this
consent as proper. This shows that written consent is not an absolute
necessity to defend an action for assault or battery, but a written consent
would afford documentary evidence that the consent was actually
obtained. The cases are not rare where the action has been brought after
several years prefer the evidence of the patient if a documentary
evidence of express consent is not provided.
3. Informed consent:-
• Is an ongoing process that includes the exchange of information and

development of choices? This does not say that the same should be in
writing. Emphasis on informed consent has been laid in Dr. Janki S.
Kumar v. Mrs. Sarafunnisa where the sterilization was done without
consent. It was observed that when one speaks of consent, that should
be informed consent.
• The person who should give consent must be aware of the risks involved
and on that awareness the patient should give consent. When, as
indicated, the patient was in general anesthesia neither could she
understand the risks involved nor could she give consent. It may be
understood that it is only in emergency that the consent may be done
away. Otherwise, the consent is necessary and that to in writing. In a
case Aplarain Jayanand Rathod v. Dr. Shailesh Shah the operation of
appendicitis was performed without written consent under the guise of
removal of stitches and no explanation was given for the second
operation. The State commission found that the Doctor was deficient in
service and was liable for compensation.
• In the cases of patients or their relatives who are more prone for
anxiety / full disclosure in presence of malignancy or unavoidable total
results the doctor should use therapeutic privilege in the interest of
patient, disclose the fact to the kin rather than to the patient.
! !224
MEDICO LEGAL ISSUES
• Try to take consent in the same language the patient understands. This
because, our country is vast country with different local languages, so try
to take consent either in their local language or in English.
Presently in India, doctrine of informed consent is not in routine practice.

This type of consent may take routes in the Indian medical practice soon,
since advancement in technology and information is taking place very fast
and increase consumer awareness.
4. Consent may be classified as
a. General consent- no written consent , similar to implied consent
b. Special consent - taken, when after surgery there is chances of

permanent disfigurement like amputation of limb in the cases of gas
gangrene or enucleation of eyeball in the eye tumor such as
retinoblastoma , or consent for sterilization operation.
c. High risk consent - usually taken by anesthetist who have to sedate the
patient during surgery and there is risk of life involved due to multiple
organ failure.
d. Consent in the case of emergency operations- where life of the patient

is to be saved and patient is unconscious and no relatives are available
to give consent for the surgery. In such situation consent can be given
by two physicians including the operating surgeon and the hospital
administrator or his representatives.
e. Situational consent:-
• When organ is to be donated , in the cases of brain death cases
• When postmortem has to conduct in a M.L.C. cases, the doctors doing

postmortem must wait for the police panchamma, stating permission to
conduct the PM.
• DAMA( discharge against medical advice ) - either patient or their near

relative have to sign in a prescribed form and patients or their relatives
should be informed of the consequences or risk involved and the hospital
! !225
MEDICO LEGAL ISSUES
or treating doctors should not be involved in the cases of any untoward

happenings.
• The following do not suit the in the ideal feature of the medical consent;-
A. It should given by individual, with sound mind
B. It should not be forced up on and should be non -directive
C. It should be always in writing and consent should in the language in

which the patient understands
D. It should be given voluntarily and after understanding the pros & cons
of the surgical procedures.
4.2.7. How consent should be obtained
The elements that a physician must discuss with his / her patient to fully
obtain informed consent are the following:
• The diagnosis and the nature of the condition or illness calling for medical
intervention and its pros & cons.
• The nature and purpose of the treatment or procedure recommended.
• The material risks and potential complications associated with the

recommended Treatment / procedure.
• All feasible alternative treatments or procedures, including the option of

taking no action, with description of material risks and potential
complications associated with the alternatives.
• The relative probability of success for the treatment or procedure in

understandable terms.
• Special attention to be paid when the surgery will lead to permanent

disfigurement or loss of functional capacity, such as amputation of limbs
• When surgery can lead to inability to reproduce such male & female
sterilization operations.
! !226
MEDICO LEGAL ISSUES
• Validity of the consent is preferably 30 days from the date of consent.
!  
! !227
MEDICO LEGAL ISSUES
A recent case came up before the Pondicherry State Commission where the
question of obtaining consent was involved. In this case consent was on
printed form except the following portion: -
"I Vasanthakumari Hosp. No. -- in my full senses hereby give my complete

consent for flap cover and SSG or any other procedure deemed fit, which is
a diagnostic procedure / biopsy/ transfusion/operation to be performed on
me / my son / my daughter / my ward -- age - - under any anesthesia
deemed fit. The nature and the risks involved in the procedures have been
explained to me to my satisfaction.’
• "The expected chances of success and failure, the risk and benefit of
procedure, the hazards and complications of the particular surgery,
should be explained to the patient before obtaining his written consent
for the operation. To avoid future allegations of negligence the surgeon
may record in the case history the points of discussion as far as
possible."
• Therefore, the legal formalities regarding consent shall be fulfilled only if

the discussion is recorded in the case history and simply obtaining the
form may not be sufficient. The commission also observed that 'the
dialogue between the patient and a surgeon is an utmost necessity and
at each stage the patient or his relatives should be informed of all the
possibilities and pros and cons of the various possibilities and the patient
is allowed to decide freely without any amount of influence by the
surgeon who may have his own ideas and his own preferences. The
commission also observed that there is no record whatsoever in the case
sheet or any explanations or information passed on to the patient.
• It should also be borne in mind that merely singing the consent form
does not exclude doctor's responsibility if he is negligent in carrying on
his duties. In this case a consent form was obtained from the patient by
virtue of whom she had consented to be responsible for the
consequences of anesthesia being administered. Thus, the argument was
the complainant was stopped from claiming damages. In these
circumstances the Maharastra State Commission observed that the
signing of the consent from doesn't exclude doctor's responsibility if he is
negligent in carrying his duties.
! !228
MEDICO LEGAL ISSUES
4.2.8. Right to refuse consent
A competent adult has a right to refuse treatment even if others, including

the medical practitioners, believe that the refusal is neither in his / her best
interest nor reasonable. In a Canadian case13 the lady patient / plaintiff
who was seriously injured in a road accident was taken to the hospital
where the defendant treated her. As her condition worsened and she lapsed
into unconsciousness, the need to treat her as an emergency arose. It
became necessary to give her blood transfusion. A Jehovah's Witness card
was found among her belongings. The card when translated read as under:
As one of the Jehovah's Witness with firm religious convictions, I request

that no blood products be administered to me under any circumstances. I
fully realize the implications of the position but have absolutely decided to
obey the Bible command -“
The defendant doctor was made aware of both the card and its contents
but, as the patient's condition deteriorated, he decided to administer blood.
The patient's daughter on arrival at the hospital confirmed her mother's
wish not to be given a blood transfusion and actually signed a consent to
treatment and release of liability for'. Despite this the defendant continued
to administer the blood. The Ontario Court of Appeal held that the
defendant was liable in trespass. As Robin JA said, the instructions imposed
a valid restriction on emergency treatment that could be provided- and
precluded blood transfusion.”
• This case precisely and accurately represent the position in English law
that may unauthorize touching is technically a battery and a civil claim
can be maintainable even if there is no evidence of damage to the
plaintiff. It may seem harsh to conclude that a defendant is legally
liable in damages when the only thing that he is 'guilty of' is trying,
must be respected if autonomy is to have any meaning.
! !229
MEDICO LEGAL ISSUES
4.2.9. Advance directives
• Also known as living wills consent given when the person is alive. Some
patients (especially in Western countries) elect to express their wishes
concerning their future treatment of a condition that has not yet arisen,
or of a current condition that may deteriorate in future.
• These are made by the competent patients with the intention that they
will remain effective if the patient becomes incompetent. There is no
direct law regarding such advance directives. The advance directives
made when the patient had the capacity to consent or refuse, the
treatment in question may be binding on the medical practitioners. When
it expresses a refusal to treatment in circumstances that the patient had
anticipate.
• In our country, there is no law regarding advance directives. A refusal to

treat the patient can only be acceptable if this possesses no additional
risk to the patient and a colleague was available to take over the
patient's case. The medical practitioner should also make a note of
refusal placed upon him by the patient.
• A refusal to accept a specific aspect of treatment doesn't remove a

patient's entitlement to reasonable and proper care, nor it confers upon
the patient a right to an alternative form of treatment.
4.2.10. Can Consent be done away?
• The consent can be done away if there is emergency and there is no

advance directive or refusal to take treatment.
• The most sacred duty of the medical practitioner is to save the life of his
patient. If the patient needs emergent and immediate surgery and the
waiting for the consent may prove fatal for the patient, the surgeon may
go ahead with the operation without waiting for the consent of the
patient because it is an attempt to save the life of the patient. This view
has been taken by our Indian courts also. It was observed in the case of
T.T.Thomas (Dr.) v. Smt. Elisa that a surgeon who failed to perform an
emergency operation must prove with satisfactory and convincing
evidence that the person had refused to undergo the operation, not only
! !230
MEDICO LEGAL ISSUES
at the initial stage but even after the patient was informed about the
dangerous consequences of not undergoing the operation.
• One case came up before Gujarat State Commission where the

complainant, a lady, having the son and the daughter, both minors,
contacted the doctor while she was carrying 13 weeks pregnancy. She
was advised Medical Termination of Pregnancy (MTP) and consent in
writing was taken. After the operation the husband of the complainant
was informed that the uterus was removed. The complainant filed a case
alleging that no consent for the removal of uterus was obtained either
from the patient or from her husband. It was found the eminent
gynecologist had participated in order to save life of the patient and they
all were unanimous for removal of the uterus, as there was continuous
bleeding and the condition of the patient was deteriorating. Thus, no
negligence regarding removal of uterus was found on the part of doctors
as his attempt to remove the uterus of the patients was in wider aspect
to save the life of the patients.
4.2.11. Consent of maternity patients
• Consent to obstetric procedure should be discussed during the antenatal

period.
• If the medical practitioner finds that the wishes of the pregnant woman
are unusual, these should be noted carefully in the antenatal record. for
example in the cases of placenta previa, usually along with consent for
LCS , also the consent for hysterectomy is also taken as risk of SX
involved due to underlying pathology is very high.
• It is necessary because the practitioner who discussed the matter with

the lady may not be on duty when that lady is admitted in labor. If the
pregnant woman insists on restrictions that were unsafe in view of the
doctor attending her, or the woman places such restrictions which make
the doctor reluctant to accept the responsibility, he (the doctor) should
frankly say so to the patient and, if possible, refer her to a colleague for
further advice. I. e second opinion.
• If no immediate necessity for operation, consent should be obtained
! !231
MEDICO LEGAL ISSUES
Case Law:
In the case of Devi v. West Midland Area Health Authority.
The plaintiff, aged 29, had 4 children and longed for more. Her religious
belief precluded sterilization and contraception. She was admitted to the
hospital for a minor operation on her womb. Without her consent and
knowledge the surgeons decided to sterilize her because they feared that if
she becomes pregnant again her womb would rupture. Although acting in
the patient's interest, there was no immediate urgency to perform the
operation without permission. The defendants admitted the liability, and
damages to the tune of 4000 pounds were awarded.
In a Canadian case the doctor tied the patient's fallopian tubes during a
caesarian operation, as he was concerned about the consequences of a
second pregnancy. No consent for it had been obtained. It was held that
there was no immediate danger and therefore, the liability existed. But in
another Canadian case the patient's diseased testicle was removed in the
course of an operation of hernia. It was observed that there was no
liability, as it was an emergency.
• Consent is necessary for every medical examination, which should be

obtained in or in the presence of disinterested party. Barring physical
examination, any medical procedure requires written consent. Written
consent should refer to one specific procedure and not blanket
permission on admission to hospital. It is on the safer side to take the
consent of spouse if the operation destroys or limits sexual functions.
• While it is not legally necessary it is good medical practice to consult with

relatives of patient in patient's best interest and ones this has been
established then doctor can continue to give treatment in good faith.
Consultation, consent and clinical confidence will never put the doctor in
tort fessors cases. In the era of advancement of knowledge and
technique the belief that as long as the patient signs everything will be,
well misguided, if the doctor is not having reasonable care and skill.
! !232
MEDICO LEGAL ISSUES
4.3 CONFIDENTIALITY:
• Privacy and confidentiality are cornerstones of the doctor-patient

relationship. Patients must feel comfortable disclosing all relevant
information, most of which is highly sensitive in nature (bodily functions,
physical, sexual activities, medical history etc.). With this information,
doctors can then provide the proper diagnosis and treatment.
• Information in the medical record is confidential because it is held that

the relationship between patient and physician is special and that their
communication should be protected from disclosure.
• Medical privacy encourages patients to seek information and support to

fully understand and evaluate their options, so that they can make the
most informed medical decisions. It promotes individual autonomy, by
sheltering those seeking morally controversial medical care from outside
criticism and interference with decisions.
• Authorized staff: - are those hospital staff that are involved in patient
care and includes doctors, paramedical and supportive medical staffs and
only such staffs should have permission to access the medical records of
the patients, if required.
• Healthcare is an extremely information intensive industry. Healthcare

personnel must acquire, process, store, retrieve and transfer clinical,
administrative and financial health information. The unfortunate aspect of
the robust data flows is the inherent problem of the misuse of
information, disclosure of confidential information and risk of privacy
violations.
• The disclosure of personal health information which contains several

personnel health matters of the patient are to maintain as confidential as
their disclosure may lead be embarrassing, stigmatizing or discriminatory
situation. Furthermore, denial of access to treatment and various goods
such as employment, life, and medical insurance, could be placed at risk
if the flow of medical information were not restricted. So the medical
record is the personal document of the patient and the hospital preserves
the medical documents primarily for the benefit of the patients and for
the protection of the hospital and the treating physician. Therefore
medical record is considered is personnel document of the patients. And
! !233
MEDICO LEGAL ISSUES
access to this record may be permitted only after presenting proof of

authority.
4.3.1. Privacy violations in healthcare: - mainly occur as a result of

human error,
Theft, compromises to electronic systems and inaccurate access controls.

This includes:
1. Disclosure of personal health information to third parties without

consent
2. Inadequate notification to a patient of a data breach
3. Unlimited or unnecessary collection of personal health data
4. Collection of personal health data that is not accurate or relevant
5. The purpose of collecting data is not specified
6. Refusal to provide medical records upon request by client
7. Provision of personal health data to public health, research, and

commercial uses without identification of data and improper security
standards, storage and disposal
4.3.2 Certain situations where disclosure of personal health

information, is permissible, for example:
a. Public safety
1. disease registration- registration of the notifiable diseases such as

plague
2. Communicable disease investigations like investigation of the

outbreak of cholera during rainy season
3. Drug adverse event reporting like clinical trials and the untoward
reaction noted like vitamin A hypertoxicosis and development of
pseudo-tumor cerebi
! !234
MEDICO LEGAL ISSUES
4. Shared confidentiality like during referral to another doctor, the

referring doctor must give the treatment details which were given by
him at the time of initial visit.
5. Events of birth , death fetal death and reporting to civil authorities

directly or through family members
b. When required by law Administration of justice
1. specific provisions of malpractice cases such as the case of medical

negligence , doctors prescribing costly medicine with the hidden
benefit to promote a particular pharmaceutical company
2. workmen's compensation cases like lack of fire safety and death of

the workers in an industrial fire outbreak, industrial accident and
grievous injury sustained by a worker
3. consumer protection cases like cases of medical negligence done by

medical practitioner during his treatment or surgery ,
4. For income tax authorities like financial audit done for a corporate
hospital, statutory audit done for government run hospitals.
5. Medical research like - vaccination studies In order to understand the

legal and political ecosystem of health information privacy in India, a
diverse range of source material was examined, including critical
primary documents, court decisions, statutory provisions, etc. for
example case study of the interesting case treated by physician and
the presentation of such case in international conferences.
6. By court order:- the hospital is obliged to provide patient's

information in the response to the court order. All the report may be
made available to the court without the patient's permission within
72 hours.
! !235
MEDICO LEGAL ISSUES
4.4 LEGISLATION
• Laws are dynamic, in that they reflect the societal attitude at a particular
period and are enacted to control the behavior and practice of the
society.
• Recent examples include
1. the enactment of the Persons with Disabilities Act to empower, promote

equality and participation of persons with disabilities-i.e. to give social
justice on medical ground
2. The Pre-Natal Diagnostic Techniques Act to curb female feticide and

correct sex ratio in India. By controlling the unnecessary USG done for
sex determination and by checking the no of MTP conducted, the
incidences of female infanticides can be curbed
3. The Medical Council of India, Code of Ethics Regulations that set the
professional standards for medical practice specially preventing non
indicated use of costly medicines in order to favor pharmacy industry by
certain doctors, to curb the CUT practices prevalent in the medical
profession. In India, a uniform statute specifically protecting medical
privacy does not exist.
• Health legislation in India is specific to certain health conditions including

mental/ physical illness, disability, communicable diseases and HIV/AIDS.
Broadly speaking, the existing legal framework is weak. Additionally,
recurring themes include lack of safeguards, toothless implementation,
inadequate redressed mechanisms and judicial inactivity.
• Medical Council of India's Code of Ethics Regulations, 2002The Medical

Council of India (MCI) Code of Ethics Regulations sets the professional
standards for medical practice. Thus MCI is the highest regulatory body,
controlling unethical practices in the field of the medicines and at the
same time maintaining the standard and the quality of the medical
education.
! !236
MEDICO LEGAL ISSUES
• Patient Confidentiality:
Physicians are obliged to protect the confidentiality of patients including

their personal and domestic lives unless the law requires their revelation,
or if there is a serious and identified risk to a specific person and/or
community; and notifiable diseases
A contradictory clause requires physicians to ensure that the patient, his

relatives or his responsible friends are aware of the patient's prognosis
while serving the best interests of the patient and the family. Disclosure of
a patient's prognosis should rest with the patient and not the medical
attendant.
1. For court needs , patients' authorization is not necessary
2. For study, medical research and analysis purpose, authorization of the

of medical records can be given to the concerned doctor, on the basis of
the written request, duly approved the ethical committee of the
concerned hospital and concerned patients, You must have seen that
whenever the identity of the patient s are disclosed then eyes of the
patients are covered, so that the identity of the concerned patient is not
revealed.
3. Date of operation, discharge , admission can be given without

authorization
4. With authorization every details can be given
• Data Access and Retention

Physicians must maintain the medical records of their patients for a period
of three years. Patients, authorized attendants or legal authorities can
request for medical Records, which have to be issued within 72 hours.
Failure to maintain medical records For three years and/or refusal to
provide medical records within 72 hours of the request Constitutes
professional misconduct rendering the Physician liable for disciplinary
action. Additionally, efforts should be made to computerize medical records
for quick retrieval.
! !237
MEDICO LEGAL ISSUES
• Written Consent: Physicians must obtain written consent from the

husband or wife, parent or guardian in the case of a minor below 18
years of age, or the patient himself, before performing an operation.
When performing an operation, which may result in sterility, informed and

written consent is Required from both the husband and wife.
• Research Publication of photographs or case studies without consent by

patients is prohibited. If the identity of the patient cannot be discerned
then consent is not needed. However, the method of consent, whether
verbal or written, is not stated. This is peculiar as Other clauses
specifically state, whether verbal or written, is required.
4.5 CASE LAWS RELATED TO THE CONFIDENTIALITY OF

MEDICAL RECORDS
4.5.1 Right to Privacy vs. the Right to Know in Mr. "X" vs. Hospital
"Z was the first decision of sensitive health information and privacy
The Supreme Court of India granted liberty to clinical establishments to

disclose the HIV Positive status of an individual to the public, without his/
her knowledge. Hospital "Z" Disclosed the HIV positive status of Mr. "X" to
his fiancé without his consent. After the revelation, his marriage was called
off and he was ostracized by the community. Mr. "X" sued Hospital "Z" for
violation of privacy by disclosing information about his health, which, ought
to have been kept confidential. The court affirmed that the disclosure.
Information prevails over the duty of confidentiality between a doctor and
patient to protect Public interest prevention of crime or disorder or
protection of health or morals or protection of Rights and freedom of
others. Now days an employer or organization can NOT make a sero-
positive UNFIT or the job as they are free to live, work & marry. Nowadays
in the matrimonial column, one can find advertisements about the sero-
positive Bridge and grooms, in search of life partners.
4.5.2 Personal health information and wrongful termination in

Neera Mathur v. Life Insurance Corporation of India, 1992
Ms. Mathur contested wrongful termination after she availed of maternity

leave. Life Insurance Corporation of India (LIC) required the women
applicants to furnish personal Details like their menstrual cycles,
! !238
MEDICO LEGAL ISSUES
conceptions, pregnancies, etc. at the time of appointment. Alarmingly, the

Supreme Court, without mentioning the right to privacy, required the
Corporation to delete such questions on the grounds that they were
'embarrassing if not Humiliating' and that 'modesty and self-respect may
perhaps preclude the disclosure of such Personal problems'. It held that
termination was only because of disclosures in Application, Which was held
to be intrusive, embarrassing and humiliating and by revealing
4.6 MEDICAL RECORDS: ( ALSO KNOWN AS PAPER

OCTOPUS)
4.6.1. Introduction and definition of the medical records

Medical Records (MR) are clinical, scientific, administrative & legal
documents relating to patient care in which sufficient data are recorded by
trained observers as per the sequence of events to justify the diagnosis &
therapy and enabling timely retrieval of the records as & when needed. It
is systemic documentation of a patient's medical history and care. Medical
Records are intensely Personal Documents and there are many ethical &
legal issues surrounding them. The hospital is built and maintained for the
benefit of the patient, and failure to maintain complete and accurate
records means failure in duty to the patient and in many ways to the
family, the community and general public and the entire society.
4.6.2. Importance of the medical records is
1. Medical records are of vital importance clinically for immediate diagnosis

and treatment and for future welfare of the patient, and in some cases
become the deciding factor between life and death- such as the cases of
brain death and removal of the vital parts for the benefit of the
mankind's, known as euthanasia
2. Medical records are of importance to the hospital for evaluation of its

services, improving its efficiency through lowered mortality and
morbidity and better patient care i.e. to do quality audit - HOSPITAL
AUDIT / MEDICAL AUDIT related to the patient care and for the
accreditation of the hospital by international bodies such as ISO
CERTIFICATION
3. Moral of the hospital staffs, both medical, and non-medical staff with
concrete evidence of a job well done is enhanced-i.e. used by hospital
! !239
MEDICO LEGAL ISSUES
HRD for performance appraisal and to give incentives, monetary and

non-monetary to the hard working hospitals
4. Records serve as a resource for education, training and post-graduate
study for physicians and others i.e. for undergraduate and post
graduate students in the teaching medical college and hospital.
5. The records are the basis for successful Clinical research. Clinical
research often has its origin in the laboratory, but is never completed
until proved through application to patients. To be effective, but it
requires scientifically records observations as reflected in the medical
record.
6. The same may be said for epidemiological work. for example by doing
field survey and sampling , epidemiologist find out causation of certain
diseases and their control measures
7. The value of complete and accurate records for legal purposes is well
established like for cases WILLS, dying declaration, dowry death, cases
of medical negligence's, sexual assault etc.
The basic principles involved in obtaining adequate medical records and

maintaining a smoothly functioning medical record department are similar
in all hospital regardless of size. Large teaching hospital supporting training
programs for interns, residents and nurses usually find it necessary to
elaborate on the basic records to fit their needs. It should not be assumed
that medical records are of lesser value because the hospital is small. The
primary reason for record keeping is to improve the care of the patient.
There can be no disagreement that the patient in a 30 bed hospital is just
as important as one in a 1000 bed teaching hospital. In all cases the record
should be complete to the extent that it presents a comprehensive picture
of the patient's illness, together with the physical finding and special
reports, such x- ray and laboratory. Such a record substantiates the
diagnosis, warrants the treatment and justifies the end result. Three of
the basic principles of medical records are that they must be
accurately written, properly filed and easily accessible. Otherwise
they become simply an expensive nuisance. Service to the professional
staff is the primary function of the Department of Medical Records. The
problem of completing records is a very real one for the already
overburdened physician. Therefore, every hospital must periodically
evaluate the service the record department renders. Careful planning of
! !240
MEDICO LEGAL ISSUES
time and judicious use of personnel and mechanical aids may well be the
answer to the problem of incomplete records. In hospitals where the
records clerk has multiple responsibilities that do not permit him / her to
help the doctor during his leisure time, the use of dictating equipment may
prove to be deciding factor between complete or incomplete records.
Medical records are the memory of the medical audit and act as the
mouthpiece of the hospital activities. It is the performance barometer of
the hospital. The data collection begins with patient and not with physician.
The information recorded comes from the patient, relates to patient, is held
on behalf of patient and is important for patients and the hospital. Thus it
serves a vital link between hospital and public through accurate and
complete compilation of clinical, scientific and administrative data. This
data helps in generating various efficiency and activity ratios which are
used in retrospection. It also helps in improvement which is essential for
the progress of the hospital.
4.6.3. Medical records are useful for:
a. Patients
b. Administration
c. Medical Professionals
d. Medico legal purpose
e. Research
a. Importance for patients :
• Medical records form the basis for planning patient care.

• They help to identify the patient with the history of his illness.
• They are essential for planning future medical care of the patient.
• Medical records are useful to the patient while claiming insurance and
other medical related claims.
• They are used as evidence in medico legal cases.
b. Medico legal importance of medical records:-
Any MR may become evidence in accordance with Indian evidence Act.
- Insurance and other claims settlements.
! !241
MEDICO LEGAL ISSUES
- Medical certificates such as fitness for employment, sickness certificate,

and chronic illness, maternity leave etc.
- Workmen's compensation Act: The clinical data recorded by medical

practitioner to indicate the extent of injury and the degree of disability of
the individual is taken as documentary evidence to settle the claims for
payment by certain classes of employees to give their workmen, some
compensation for by certain arising out of and in the course of his
employment under the Workmen's Compensation Act.
- Patients Will: Medical record gives the day to day progress of the patient
as by the clinician and then indicate whether the patient was of normal
mental state or not at the time of making his will.
- For the settlement of personal injury suit : The medical record is used to
obtain the required data regarding extent of injury, the type, amount and
length of treatment given in order to settle the claim made by an
individual for damage sustained as a result on injury which were due to
the fault or neglect of another.
- The malpractice suit: Medical record protects doctors and the hospital if
action for damages be brought against hospital by demonstrating that
there was no negligence involved and the treatment was scientific,
adequate, proper and prompt. Criminal cases: Medical records play an
important role in investigation of murders, assault, rapes and dowry
deaths.
- Authorization for operation: Consent is required for operation. In case of

children, parent or guardian. In case of person of unsound mind, the
person in whose custody and care the patient has been lawfully
committed have to give necessary consent.
4.6.4 Procedures for the completion of the medical records:
1. Accurate and complete medical records, sufficient to justify the

diagnosis and to establish the basis upon which treatment was given
shall be written for all patients.
2. There shall be written policies, procedures and rules for the completion
of the records, the nomenclature to be used, the use of records
! !242
MEDICO LEGAL ISSUES
including the release of information for the guidance of the medical

record librarian and hospital personnel.
3. A member or committee of members appointed by the medical staff

shall be responsible for the maintenance of complete and up-to-date
medical records and the review and analysis of the clinic all experience
in the hospital.
4. Medical records shall be filled in an accessible manner in the hospital.
5. Proper indexes shall be maintained in order that medical records may be

available for all purposes.
6. Records of operations, obstetrics, anesthetics, roentgenograms and

clinical and pathological laboratory findings shall be properly classified
to permit ready reference.
7. Records for inpatients and outpatient shall be correlated.
8. Medical records shall be regarded as privileged communication as

specified in statutes and regulations of the state and local community.
9. Each case of communicable disease, poisoning, epidemic outbreak or

other unusual occurrence which threatens the welfare, safety or health
of any patients, as well as each case of notifiable disease shall be
reported to the local board of health having jurisdiction of the patient,
or to the state department of health as may be required by state,
statute and regulation.
10.Hospital records shall contain data to permit a basis for a complete

audit of professional service given and for gathering statistical
information.
11.Proper recording methods and procedures shall be maintained to assure

compilation of data for proper administration of services.
12.A summary of hospital services shall be compiled periodically for

presentation to medical staff conferences.
! !243
MEDICO LEGAL ISSUES
13.Vital records shall be maintained and statistics compiled as required by

state, statues and regulations.
4.6.5. Characteristics of a good medical record:
1. Complete: It must contain sufficient data written in sequence of events

to justify the diagnosis and warrant the treatment.
2. Adequate: Complete progress note written by attending doctor.
3. Accurate: To justify its purpose.
4. Comprehensive: To the point and easily understood.
5. Economical: Should not be an economic burden on the administration to

maintain.
6. Properly planned: In sequence, easy to understand and in order.
7. Timely: Space for time to time entry regarding investigation diagnosis

treatment and follow up of the patient.
4.6.6 Classification of medical records:
1. Vital records
2. Important records
3. Useful records
This is done so that the records can be easily analyzed, compiled and
stored.
• Types medical records :
- Vital records: These are records which need to be protected and

preserved for a long time e.g. birth and death records.
- Important records: These are records which are not currently in use
but are of high value e.g. medico legal records.
! !244
MEDICO LEGAL ISSUES
- Useful records: They are the records which are currently used in
correspondence.
- Transit: These are useful for only a short period till subject till subject is
alive or active.
4.6.7. Main Components of Medical Records:
1. Social data: It consists of general information regarding patient's

identification such as name, age, sex, community, religion, residential
address, occupation, marital status etc.
2. Administrative data: It consists of patients OPD registration number,

name of the OPD, name of the unit head, X-ray registration number and
other investigations reference number. If patient is to be admitted in the
hospital, his indoor registration number, date & time of admission,
patient accompanied by whom, his relation with patient and his
signature along with the admitting officer's signature.
3. Clinical data : It is collected at two levels : OPD : It consists of;

1. Complaints
2. Past history of illness
3. Physical examination
4. Provisional diagnosis
5. Laboratory investigation / x-ray reports
6. Special investigations
7. Treatment
8. Final diagnosis
9. Advice
10.Follow up
4. Ward : Along with the above information, it consists of;

1. House officer's note
2. Registrar's note
3. Honorary medical officer's observations
4. Operation note
5. Nurses beside record
6. Discharge summary
7. Recommendations
! !245
MEDICO LEGAL ISSUES
1. Space :
It should be centrally situated. Depending upon the hospital policy, working
flow and record department can be placed as required but it should
convenient from patients and staff point of view.
Space required:
Capacity (no. of beds) Space in sq. ft.

50 175 - 200
100 240 - 300

400 500 - 600
500 1000 - 1200

Admitting office = 125 - 175 sq. ft.
Admitting office cum enquiry = 250 - 350 sq. ft.
As the bed strength of the hospital increase, more space is required.
! !246
MEDICO LEGAL ISSUES
2. Equipment and furniture : At registration counter :
1. Writing desk with various drawers to keep different forms.
2. Chairs with proper height for easy communication with patients at

registration counter.
Telephone and intercoms to communicate with various departments, wards

and outside the hospital whenever necessary placed at the desk.
3. Accessories of medical record department
1. Racks and Shelves for storage of medical records

2. Cupboard to keep important documents
3. Tables and chairs for staff
4. Telephone and intercom for communication.
4. Manpower planning:-
The manpower planning deals with the personnel requirements according

to the bed strength and patient load. A thumb rule is to provide one
Medical Record Technician for every 50 beds and a Medical Records Officer
for more than 100 beds.
! !247
MEDICO LEGAL ISSUES
5. Recommendation for proper preservation of Medical records:
i. Selection of paper link:
ISI (Indian Standard Institution) has laid down the criteria for
specification for paper of the medical records in IS: 1774 - 1961 which
was revised as IS: 221 - 1962 as medical record has to be preserved for
more than 10 years.
ii. Protection from insect attack:
• Proper fumigation
• Rack should be installed 5'' away from wall
• Wooden shelves attracts white ants , so closed steel rack are preferred
iii. Atmospheric pollution:

• Especially from the presence of acidic gases like sulfur dioxide,
sulfurated hydrogen in the polluted air.
! !248
MEDICO LEGAL ISSUES
6. Safety against fire:
• No smoking zone
• Adequate fire extinguisher
• All electric wires should run through conduits
• Windows to be covered with wire net frames as safeguard against
sabotage or pilferage
7. Temperature and Humidity control
• Temperature above 32oC (900F)and humidity above 70% promote the

growth of microorganism
• So that temperature should range between 20- 25o C (72 - 750F) and
relative humidity between 44 - 55%
• Microfilming of medical record
8. Medical Forms:
• All forms should be good quality paper to withstand frequent handling
• Paper having lowest initial cost , may not be cheapest in long run
• 8 - ½ * 11'' is the most common size of an inpatient medical record used

in nursing audit
9. Outpatient Records :
• An outpatient identification ticket with provision for name of patients,

registration number, date should be mentioned
• The size of OPD record card recommended is 9''*6''
• In some hospital it is 8-1/2'' * 11'' ,same as inpatient record
10.Coding:
• Classifying the records of inpatients by ICD coding system
! !249
MEDICO LEGAL ISSUES
• Coding of provisional diagnosis (at the time of admission)
• Coding of death certificate
11.Retention of Medical Records :
• According to the need of patients : Up to 7 years
• Medico legal
a. Inpatients : 7 years
b. Outpatients : 5 years
• Teaching / Research: Up to 7 years
• It is seldom that records older than 7 years have been required to be

retained
• The American medical records association have adopted policy of

retaining a record for a period of ten years
• Keeping records for such long period consumes a lot of space. Two
alternatives to retaining bulky medical records are
a. Microfilming
b. Comprehensive Summary
! !250
MEDICO LEGAL ISSUES
4.7 FORMS:
There are many types of record forms in used today. Forms have frequently
been made up to satisfy individual doctors interested in one special branch
of medicine. These forms serve the purpose for which they were intended
but are not designed for general use. The following clinical record forms
have been designed to meet the basic needs of the non-teaching hospital.
Many of these forms will serve a dual purpose since an attempt was made
to keep to a minimum the number needed.
4.7.1. BRIEF CASE SHEET:
• This is called the Brief case sheet because it contains in brief pertinent
facts concerning the patient's stay in the hospital. This is the form used
in admitting the patient and becomes the face sheet of the clinical chart.
• Sociological and identifying data should be carefully selected and if these

facts are fully and accurately obtained on admission of the patient, the
record will contain all non-medical information needed for the business
office, insurance companies, as well as the information required for birth
and death certificates such as telephone no of the patient, their e-mail
id, Xerox copies, Aadhar card and BPL CARD etc.
• The information is filled in by the admitting clerk at the time of

admission, so it is available at central registration desk. Space may be
provided for the signature of names and serves as a check against
signatures received later for purpose of granting release of confidential
information.
• The date and hour of admission and discharge are entered on the form,
together with the total number of hospital days. The lower half of the
page has space allocated for final diagnosis, operation performed and
condition of patient on discharge.
• The non-medical part of this record is the responsibility of the records

department.
• The recording of the medical date (i.e. diagnosis, operation, condition on

discharge) is the responsibility of the attending physician and should be
recorded and signed by him. It may be recorded or typed on this page by
! !251
MEDICO LEGAL ISSUES
the records clerk at his direction bit it must be signed by the attending
physician.
• It is recommended that the following statement be printed above the

space for the physician's signature, "I have reviewed this record and find
it to be completed and accurate". This will eliminate the need to sign the
separate pages in the chart with the exception of the operation report.
• When the operation is performed by other than the attending physician,

the report should be signed by the surgeon. The physician should review
the entire chart and make any additions or corrections before he sign the
Brief case Sheet.
• Therefore utilized for admission of the patient in the ward,

maintaining alpha- index to establish the identity and location of
the patients, and filling the front of the medical record with the
final diagnosis & with the treating physician or surgeon
signature.
4.7.2. MEDICAL HISTORY FORM:

The History from included in this series has at the top a list items
pertaining to family history. These items are of such a nature that they
may be obtained and recorded on the form by a clerk, as part of the
admission procedure. The reminder of the form, the narrative history of
past and present illness, should be written or dictated by the physician
attending the patient or by the referring physicians. Therefore it contains
the non-medical part filled by admission clerk and medical part filled by the
attending physician either in casualty or in the ward.
4.7.3. Physical Examination Column or Sheet:

Those who wish to tick their findings may do so on a preprinted form and
use a blank space for elaboration of abnormal findings. Others may prefer
to write or dictate full physical findings. The latter is preferable. For
example
• Chief complains
• Clinical examination-general conditions of the patient
- Pulse, B.P., H.R., Icterus, clubbing, cyanosis, etc
! !252
MEDICO LEGAL ISSUES
a. Oral examination
b. Per abdomen examination
c. Chest exanimation
d. Examination of gentiles etc
4.7.4. LABORATORY REPORTS:
• These reports are designed as a backer for laboratory and x-ray forms.
• Laboratory forms may be in duplicate with a carbon inserted to serve

both as the request for laboratory work and for the report of findings.
The technician's recording of the findings on the original is reproduced on
the duplicate.
• The original is returned to the nursing station and the copy is retained for
the laboratory files. The original (stapled or gummed) is fastened to the
backer and any subsequent reports are put on the same backer, until the
page is filled. If stapled, a fine wire staple should be used to reduce the
bulk and weight of the record.
• It contains report about :
• Hb
• CBC
• PS for MP
• LFT
• RFT
• T3, T4, TSH
• Sr uric acid
• Sr Electrolytes
• Widal test
• U/RM etc
4.7.5. X-RAY REPORTS:

The same procedure may be followed for x-ray reports as for laboratory
reports. It is recommended that laboratory and x-ray forms be purchased
with intricate one-time carbon. The slight additional cost of such forms is
more than offset by the saving in personnel time consumed in inserting
and withdrawing carbons. It contains the reports of plain X-Rays, Digital X-
rays, Oral Pentogram, Mammography, X-rays KUB etc.
! !253
MEDICO LEGAL ISSUES
4.7.6. OPERATION REPORT:

This form is designed to cover information usually included on the
anesthetic report, such as pre-medication and condition during anesthesia,
as well as usual items of diagnosis, time of operation, name of surgeon and
nurse, surgeon's findings and description of operation performed. It should
also contain the details of intraoperative and immediate post operative
recovery of the patients. The surgeon should state whether the operation
was major or minor.
4.7.7. Tissue examination requisition ion form:
• Tissue removed during an operation an operation or specifically removed

for biopsy/ FNAC/ USG Guided FNAC etc should be submitted to the
histopathology laboratory together with a request for examination and
report.
• Since this form is designed to serve both as the request and the report of
findings it should be made in duplicate and sent with the specimen.
• Where the examination is done in the hospital the laboratory should keep
the duplicate report in its files. When sent to an outside laboratory, the
original will be returned to the hospital to be attached to the clinical
record. The examining laboratory may desire to keep the duplicate. A
space for accession number is provided for the laboratory to record its
identification number of the specimen.
• Patients are always intimated about the HP report and are instructed to
follow up the treating surgeon with HP Reports, because based on this
further RX can be decided such as hysterectomy for endometriosis cases.
4.7.8. DOCTOR'S ORDERS SHEET:
• It is recommended that all treatment and medication ordered by the

physician be recorded on a separate form rather than in an order book or
on the progress report form.
• All orders should be written by the attending physician and signed by

him.
! !254
MEDICO LEGAL ISSUES
• Telephone orders recorded by the nurse must be confirmed by the

signature of the doctor when he next visits the hospital.
• Doctors must write the name of medicines, dose in which the particular
drug to be administered, route of administration- PO or IV / IM, duration
of medication.
4.7.9. PROGRESS REPORT:
The attending physician should monitor following parameters of the

patient,
a. unusual trends- temperature graph and spikes of the temperature,

especially seen in Malarial Fever
b. infection of surgical wounds- while doing daily dressing such wound gap,
discharge
c. results of medication and treatment - such as features of drug allergy
d. Any abnormal findings not observed on admission such as appearance

of abnormal murmur on the auscultation of the heart.
• These notes must be dated and signed.
• A brief and comprehensive note should be made at time of patient's

discharge, summarizing the case.
• Specific statements by the physician relative to the course of the

disease, special examinations made, response to treatment, new signs
and symptoms, complication and in surgical cases, removal of drains,
splints and stitches, condition of surgical wound, development of
infection and any other data pertinent to the course of the disease are
also recorded.
• The frequent use of general statements, such as "condition fair",

"general condition good" and "no complaints", is unscientific and
valueless. This may appear to be an added burden on the doctor but
every frequently it serves as a time saver, because it eliminates the
necessity for repeated inquiries to obtain information for completion of
! !255
MEDICO LEGAL ISSUES
the numerous forms now needed to certify fitness for duty in industry
and for insurance claims.
• Report of blood transfusions, giving information concerning the type of

blood and the amount given may be reported here.
• Electrocardiography tracings can be mounted and the interpretation

recorded on the progress sheet.
4.7.10. GRAPHIC CHARTS:

This chart is for the use of nursing personnel in recording the patient's
temperature pulse, respiration in graphic form - TPR CHART, fluid input &
output chart etc. Space is provided on the form for entering blood pressure
readings, summary totals of fluid intake and output and daily and
cumulative totals of special medications.
4.7.11. NURSE'S NOTES:
• This is for the use of nursing personnel in recording their observations.
• It provides separate columns for the date, medication and treatment

(which may also include diet) and general observations. The hour is
recorded in the appropriate entry column rather than in the date column
in order to make maximum use of the space.
• 'Nurses' entries should be limited to information and observations

concerning the patient's reactions, condition and significant items of
care. Entries concerning routine care, such as bed baths, or observations
that "had a good night" add little to the record and should be omitted.
• They should record their details of their daily activities, including any
specific instruction given by the doctors, during Doctors Round, like ABG
Analysis etc.
! !256
MEDICO LEGAL ISSUES
4.7.12. OBSTETRICAL AND NEWBORN RECORDS FORMS:
• It is probable the special forms for obstetrical cases and new born infants
will need.
• It has been useful in many instances to provide the physician with

pregnancy record forms on which to record in duplicate the prenatal
history and observations made during office visits.
• The doctor keeps one form in his office and sends the other to the
hospital when the patient is admitted for delivery. This procedure tends
to result in better obstetrical records.
• Important to maintain the vital statistics such Pre-Term babies, FTND,

Still born, LBW babies etc.
• It also helps in knowing the no of deliveries conducted
a. Without episiotomy
b. No of LSCS performed
c. No of MTP conducted
d. No of babies delivered by applying suctions etc
4.7.13. ALL FORMS - GENERAL CHARACTERISTICS:
• All of the forms discussed above are standard full size forms except the
laboratory and x-ray report forms.
• The name of the hospital may be preprinted at the top of each form. If
the forms are purchased from a record supply company and it is felt
desirable to avoid the cost of overprinting, the name of the hospital on
the Brief Sheet is sufficient to identify the chart as long as it remains in
the hospital.
• If it is released from the hospital, as it may be for presentation at court

in the event of a lawsuit, the records clerk should stamp the name of the
hospital on each sheet and number the pages in sequence. Most of the
forms the title is printed in the lower right hand corner, thus making it
easy to locate.
! !257
MEDICO LEGAL ISSUES
• Space is also provided at the bottom of all forms for the name of the
patient, ward or room, and the registration number. This convenient
location will promote more accurate filling.
• Many forms are designed for use on both sides of the sheet to keep
record bulk to a minimum and thus conserve filing space.
• It is recommended that all forms be punched at the assembled for filling

after the patient's discharge, it is suggested that they be fastened on a
backer or in a folder with a light built in fastener.
4.7.14. SHORT FORMS:
• A short form medical record is acceptable in certain treatment and

diagnostic of a minor nature which require less than 48 hours
hospitalization. It is different from DAY CARE treatment form.
• Short forms may be appropriate for such conditions as tonsillectomies,

cystoscopies, plaster casts, removal of superficial growths and accident
cases held for observation.
• The short form should at least include identification data, a description of

the patient's condition, pertinent physical finings, an account of the
treatment given and any other data necessary to justify the diagnosis
and treatment. The record should be signed by the physician.
4.7.15. RE-ADMISSIONS FORMS:

If a patient is re-admitted within one month's time for the same condition -
with same illness, with same the previous history and physical
examination, then re-admission form can be used by the hospital
authorities
! !258
MEDICO LEGAL ISSUES
4.7.16. SIGNATURE:
1. In hospitals without house officers, the attending physicians should

separately sign the history and physical examination, operative report,
progress notes, drugs and other orders and the summary. Standing
orders should be reproduced on the record and signed by the physician.
2. In hospitals with house officers, the attending physician should

countersign at least the history and physical examination and the
summary written by the house officer. Aside from the fact that this is a
legal requirement in many states, it is a protection for the individual
physician. It is not considered necessary to countersign progress notes
or drug and treatment orders written by house officers. In all instances
a physician should sign the clinical entries which he himself makes.
Senior residents defined as third, fourth or fifth year residents need not
have their histories, physicals and summarized authenticated if they are
licensed physicians and the medical staff has voted to allow them this
privilege. Senior residents, as defined above, may be given the right to
authenticate histories, physical and summaries written by externs,
interns, first and second year residents, if the senior residents are
licensed physicians and permission has been given to do this by vote of
the medical staff.
3. A single signature of the physician on the face sheet of the medical

record does not suffice to authenticate the entire content of the record.
4. The use of rubber stamp signature of the physician is acceptable under

the following strict conditions.
a. The physician whose signature the rubber stamp represents is the

only one who has possession of the stamp and is the only one who
used it.
b. The physician places in the administrative offices of the hospital a

signed statement to the effect that he is the only one who has the
stamp and is the only one who will use it.
c. Initials in place of a full signature are acceptable provided that the

initials can be recognized as having been placed there by a particular
physician who can be identified by those initials.
! !259
MEDICO LEGAL ISSUES
4.8 MEDICAL CERTIFICATES:
The various certificates that are issued by the doctor in his professional
capacity are:
1. Admission / Discharge certificate

2. Emergency admission certificate
3. Birth record certificate
4. Medical Termination of Pregnancy certificate
5. Maternity leave certificate
6. Sickness Leave certificate
7. Accident on duty certificate
8. Disability certificate -note disability must be mentioned in the terms of
% & whether it is permanent disability or temporary disability , should
also be mentioned
9. Medico legal case certificate
10. Unsoundness of mind certificate
11. Vaccination certificate
12. Insurance certificate
13. Quarantine leave certificate
14. Paternity leave certificate
15. Special sick leave certificate
Giving a false certificate is a criminal offence and the issuing physician may
be dragged to the court.
4.8.1. Death certificates:
Death certificates are extremely important documents and while issuing a

death certificate certain precautions have to be taken.
1. A doctor should not issue a death certificate unless he has attended the
deceased at least once during the seven days preceding death.
2. On should be very sure of the diagnosis before giving a death

certificate. In case of a doubt, it is always better to ask for post mortem
examination.
3. While given a certificate it is important to identify the person concerned

and even to note identification marks on the certificate.
! !260
MEDICO LEGAL ISSUES
4. The certificate should also contain day, date & diagnosis, advice given,
signature, name and registration number of the doctor. It is a good
practice to keep a duplicate copy of any certificate issued.
5. A doctor is not entitled to charge fees for writing a death certificate. He

also can not delay or refuse on the grounds of non receipt of
professional fees.
A doctor can refuse to give death certificate if
1. He is not sure of the cause of death

2. It is a sudden death
3. There is suspicion of foul play like suicide , homicide, poisoning etc
4. The death is caused by any violent or unnatural cause, medicine or
poison
5. There is suspicion of starvation, exposure or neglect.
In such situation one to have report to police authorities before the body is
removed for cremation. Signing of blank death certificate in anticipation of
death is not only illegal but is also violation of medical ethics. Always
recommend for the post mortem to be conducted if there is essence of foul
play.
a. INDEXES :
• Just as the items in a catalog are alphabetically listed or "indexed", so

indexes are kept in hospitals to tell where to locate either the clinical
records in the department or various kinds of information contained
within those records.
• There are generally four types of needs to locate records. Each is met by
a specific index.
A. Name Index (also known as master index and patient's index):

To find the record of a patient by name, a perpetual name index is
maintained. This is usually a card index, one card for each patient.
The information on the card should be for identifying purposes only.
This will include: (a) full name of patient (last name recorded first),
(b) registration number, (c) address, (d) date of birth, (e) date of
admission, (f) date of discharge. The card should be competed
! !261
MEDICO LEGAL ISSUES
through item (g) at time of admission and held in a "current inpatient

file" or "house file". At time of discharge it is withdrawn and the
discharge date tied or stamped and the card filled in alphabetical
sequence in a master file. The term "master file" indicates that the file
contains the name of each patient admitted regardless of the year of
admission. Readmission should be recorded on the original card. At
the time of a patient's admission, the name file should be screened
for previous admission and the card of a readmitted, patient pulled
the master file, the subsequent date of admission entered and the
card placed in the "current inpatient" file and processed in the same
manner as on original admission. Any change of address should be
noted on the card at this time. In order to conserve valuable hospital
space, it is recommended that a small size index card be used.
B. Disease Index: To find groups of clinical records of patients having

the same diagnosis, a disease index in maintained. The final diagnosis
as recorded on the Brief Sheet by the doctor at time of patient's
discharge is the source for recording in this index. The primary reason
for keeping such an index is for convenience in producing charts of
patients with like diagnosis. It is not used for compiling statistics of
hospital activity. The index should be well planned to fit the needs of
the individual hospital. Care should be exercise to keep only the
information needed. It is recommended that this index be kept on
cards, probably 3x5 in size, of lightweight index stock. The card
should be carefully designed for ease of posting with number of
columns limited to a few significant items. The minimum entries
should be: patient's register number, date of disposition (i.e.
discharge or death) hospital days, sex, age, death and autopsy. It is
advisable to have one blank column for the occasional indexing of
items of special interest such as manifestation of a particular disease.
There are two common types of equipment for the disease index, the
vertical file and the visible file. Either is satisfactory and selection is
entirely a matter of preference. The comparative expense should be
considered in relation to the type and frequency of use made of the
index before deciding on the equipment. There are other methods of
maintaining this and other hospital indexes, such as to rotary file, or
by the punch care system. The latter is used occasionally in large
teaching hospitals but its use in the non-teaching hospital is not
practicable. So Patients file are arranged according the disease they
! !262
MEDICO LEGAL ISSUES
suffer from. The ways to maintain the patient records on the basis of
disease index are
a. vertical file
b. visible file
c. rotary file
d. By the punch care system
The Standard Nomenclature of Diseases and Operations is most

commonly used for diagnostic terminology and coding. The International
Classification of Diseases-ICD used broader groupings and is said to be
quicker more satisfactory for coding purposes in most hospitals if
physicians continue to use standard terminology. Discussion of systems
in sufficient details to make it possible to set up and maintain them in a
simplified manner is of sufficient importance and complexity as to require
separate treatment. It is advisable to secure the technical assistance of a
qualified Medical Records Librarian to help plan and install the system
and train clerk. This is of particular importance in light of increasing
automation.
C. Operation Index: To find groups of clinical patients who have had the
same operation done for a particular disease, an index known as an
operation index is maintained.
The following are the sources to obtain the operation index
a. the completed Brief Sheet

b. operative notes
c. short stay operative note sheet
D. Physician's Index: To group the patients who have been attended by

the individual physician a Physician's Index is kept. This is only one of
the indexes other than Patients' Name Index that necessarily lists the
name of the patient. The index is maintained to serve the administration
with figures which may be of interest in future staff assignments. It is
often used to locate patients of an individual Physician. It is helpful to
locate or give appointment of an old patient of a particular physician, by
looking at the physician index.
! !263
MEDICO LEGAL ISSUES
4.9 RELEASE OF THE INFORMATION CONTAINED IN THE

MEDICAL RECORD:
Medico-legal problems often concern records department personnel.

Policies governing the release of confidential information should be clearly
by the administrator. The policy should be formulated on the basis of these
principles:
i. As a personal document, the record is used to identify the patient with

the history of his illness, the physical findings and the treatment given
to this one individual. The information is confidential and may not be
released to anyone without the patient's permission.
ii. It is advisable before releasing information (as authorized by the

patient) that the attending physician also be notified of the request and
that he, too, sign the release for information.
iii. If a second physician is called to care for a patient, that physician is

regarded as having the patient's permission to review the record.
iv. It must be recognized that if a record is subpoenaed it must be

produced in court, within 72 hours
v. Usually a member of the records department represents the hospital in

producing this record in court.
vi. As an impersonal document, the records may be used for review of the
work of the hospital and for research purposes like retrospective
analysis review of medical records of the treated patients. In such
instances the record of the individual loses it's identify as a personal
document and only the record number is used and so it is unnecessary
to obtain permission.
vii.If the record is used for research purpose, and publication is intended,
courtesy demands that the physician who attended the patient should
be advised in advance and his consent obtained.
viii.The medical record is legally the property of the hospital. Her contact
with consent of operation and treatment will be negligible.
! !264
MEDICO LEGAL ISSUES
ix. If it is the policy of the institute to obtain consent for operation, it will
be her responsibility only to ascertain that such consent slips are a part
of the record and are legally sound. Her knowledge of the factors
qualifying consent for operation must be sufficient for her to interpret
the policy established and to permit her to determine whether the
absence of a consent slip is justified and whether the supporting
evidence justifying the absence of a consent slip is a part of the clinical
immediate superior, usually the administrator or medical director.
Similarly, her contact with consent for autopsy will be negligible, as it is
not her responsibility to obtain such consent but only to ascertain that
consent is properly a part of the clinical record whenever an autopsy
has been performed.
x. In the event of autopsies performed at the direction of the coroner court

or medical examiner, it is her responsibility to ascertain that the clinical
record has the proper notations to substantiate and justify the autopsy.
xi. If the patient leaves or takes discharge from the hospital against the
advice of the physician, then in such event, what are ideal hospital
proceeding to safe guard the hospital and the treating physician.
a. First the signature of the patient is taken.

b. In the event the patient refuses to sign a then in , the clinical record
should contain a statement by the physician that patient is taking
discharge against the will of the treating physician and the pros and
cons of his premature discharge has been explained to him.
c. Physician's signature and signature duly witnessed -i.e. duty doctor,
ward sister or patients relatives is taken, setting forth the
circumstances, reasons and warning against the premature
department
xii.Problems involving the right of privacy and privileged communications

will arise almost daily in the medical record department. Knowledge of
the basic principles involved and of the many qualifying factors will aid
the medical records librarian in arriving at proper solutions to the
problems. The medical records librarian may use as a guide the
following general and specific comments: nonprofessional information,
such as name, address, date of hospitalization etc. is not considered
privileged and may usually by divulged with impunity.
! !265
MEDICO LEGAL ISSUES
xiii.All professional information is to be considered privileged and not be

released without a properly signed and witnessed consent. No
information should be given over the telephone at any time except in an
emergency and then only after verification of the patient of the
information as one who is entitled to the information. No one may see a
clinical record without the consent of the patient. There are certain
exceptions to this general rule :
1. Those individuals who have been responsible for the inclusion of the
professional information may review the record.
2. Clinical records may be used for study and research purposes in

which case the individual using the record is legally and ethically
prohibited from divulging any information which may be used for
publication of scientific papers etc. if the identity of the patient is not
revealed.
3. The administrative authority has the right of access to clinical

information in the interest or the protection of the patient, patients of
public, but in any such case, it is incumbent upon that administrative
authority to protect the interest of the patient and safeguard them
from embarrassment or exposure.
4. Clinical information, of course, may be divulged in a proper court,

tribunal etc., when subpoenaed through the legal service of a
subpoena deuces tecum.
5. Professional information may be furnished to those governmental

authorities responsible for the protection of the general health of the
community but only in sufficient detail to permit the authority to
protect the general public, and of course, always be conformity with
statues or local ordinances. In all other cases, it is considered
advisable to obtain consent for release of information duly signed and
witnesses prior to the furnishing of any professional or clinical
information.
 
! !266
MEDICO LEGAL ISSUES
4.10 BEST EVIDENCE
Best evidence in the medical field is regarded as the evidence - from the
patient medical record, is one which is
• Original
• not copied
• Duplicated.
• Hence, clinical records, should consist of the original of each form

or sheet and not the copies. While this practice is almost universal in
hospitals, yet occasionally clinical records are found in which the face
sheet is a duplicate, and the laboratory, x- ray and other reports are also
duplicates, the originals being field in the department originating the
form, this is not an acceptable practice and may cause embarrassment or
inconvenience to medical records librarians on presentation of clinical
records in courts. So in order to avoid such legal problems always try to
preserve the medical records in original. Recently some courts have ruled
favorably upon the acceptance of microfilmed records, but it is
considered advisable for each medical records librarian to ascertain the
status of microfilmed records in her jurisdiction.
4.10.1. Filling of Records / Preservation of Medical Records:
• There are two common methods of numbering and filling records.
• One is the assignment of a new register number to each patient at time

of admission. This is known as serial numbering and chart may be filed
either separately under numbers as assigned to together under the most
recent number.
• The latter is a modified of "brought forward" serial system. The second

methods, called "unit numbering", is the assignment of one number to
a patient on first admission, using that same number of subsequent
admissions. With this type of system all records of a patient are kept
together in one jacket regardless of the number of admission of the
patient.
! !267
MEDICO LEGAL ISSUES
• The major problem is one of space and this should be sufficient for an
activity period of at least 5 years. Where sufficient space is unavailable
and records must be retired to secondary filing space within a matter of
months, it would be preferable to assign a serial number on each
admission and bring forward the records of previous visits. There is merit
in both plans and choice of one should be predicated on individual
hospital facilities, staffing, patient populations and related factors.
However, the unit records system reduces work. Increase efficiency in
statistical reporting and eliminated duplication of entries on the disease
and operative index cards.
• Before a unit record system in installed, careful study should be made

of :
1. Percentage of readmissions.
2. Activity of records (how often and over how long a period the records
are used, or drawn from the files after permanent filing).
3. Average size of charts (the thickness of charts or the average number

of pages in a chart).
4. Location of master name files for quick reference to previous

admissions.
• The major trend is towards terminal digit filing of records. This

system facilities sorting, filing and retrieval by being more accurate,
faster and easier.
• Storage on open shelving is far preferable to the old methods of filling,

cabinets, making records more easily available and occupying less floor
space.
• Filing of the medical record which is done in a hospital set up with the
help of computer is known as Microfilming Its major advantage is
that of saving storage space, in instances to such a degree as to offset
costs of microfilming procedures. There are other advantages, but in
the average hospital without heavy teaching and research activities,
physicians still prefer reviewing the original record rather than using
the microfilm reader. It has been reported that in the average hospital
! !268
MEDICO LEGAL ISSUES
more than half of the records of former patients are seldom, if ever,
recalled for study.
• Responsibility of medical record officer: Her assistants and

subordinates will look for guidance in problems concerning privileged
communications .From time to time, the medical records librarian may
appear in a court before a compensation commission or other tribunal
in response to the service of a subpoena duces tecum as the custodian
of the record. It is her responsibility to obey the subpoena if legally
served, and it is not her responsibility to question the use of the record
for purposes of evidence, it is suggested that she refer the matter to
the hospital's attorney through her administrative superior.
• Unless the hospital attorney or the hospital trustee can secure and
injunction restraining the use of the record prior to the date of
appearance in court, she is legally obligated to obey the subpoena
under penalty of contempt of court. After the legal service of a
subpoena, the individual ordered to appear must obey unless duly
informed that the subpoena has been cancelled or an injunction issued
to restrain the action of the subpoena. The latter will rarely happen,
but it must be recognized as a possibility.
• Medical Record is a confidential report of the patient & cannot be

released without patient's permission. Any information from the patient
medical records should released on written request by the patient e.g.
to employer or the organization where a person is working or to
insurance companies. Police authorities and courts can summon
medical records.
i. How long to preserve the case papers;
• Limitation period for filing a case is maximum up to 3 years under the

Limitation Act (2 years according to Consumer Protection Act). However,
this limitation period starts only after the patient comes to know the
effect of the alleged negligence on part of the doctor.
• As per the general rule
• (a) for indoor cases of MLC- records to be preserved for 7 years
! !269
MEDICO LEGAL ISSUES
• (b) for outpatient MLC- records to be preserved for 5 years
• (c) Records in the teaching and research centers - to preserve for 7

years.
• (An extreme example can be given of the obstetrician who was sued by
the child who was delivered by him and suffered birth injury after 21
years i.e. within 3 years the child becoming major according to the law.
Maharashtra government has issued a resolution (G. R. No. JJH-29
66/49733) which states that OPD paper should be kept for 3 years,
indoor for 5 years, and papers of Medico Legal Cases for 30 years.
4.11 DYING DECLARATION:-
4.11.1. Introduction: - Dying declaration is provided by section 32; sub-

section 1, of the Indian Evidence Act.
• According to this section, the following is used to describe the dying

declaration, given by admitted patient in the hospital, these are
a. the declaration of a dying person as to the cause of his death

b. as to any of the circumstances of the transaction which resulted in his
death
c. and when the cause of his death is in question
• If the declaring survives after making the dying declaration
a. the statement is inadmissible as dying declaration

b. he can also be cross examined on the dying declaration as previous
statements
c. his dying declaration can be Reduced into writing, and relevant to
matters in question under section 145 of the Indian Evidence Act
• Admissibility of dying declaration :-
• Section 60 of the Indian Evidence act says that the oral evidence must
be direct. And the rule of law is that hearsay evidence, which is not
direct, is not admissible. Dying declaration is a kind of hearsay evidence
but it is admissible as an exception to the general rule that hearsay
! !270
MEDICO LEGAL ISSUES
evidence is not admissible. The only evidence which is oral, hearsay, and
direct and admissible in the court of law is dying declaration
• Dying declaration is made admissible on the principle that truth sits upon
the lips of a dying man. It has been well reasoned in the literature by
Shakespeare , in Richard II , by the following words -
"Where words are scarce, they are seldom spent in vain,
They breathe the truth and breathe their words in pain. “
i. The general principle on which the dying declarations:- are

admitted in evidence is that
a. they are declarations made in extreme conditions, when the party is

at the point of death,
b. when every hope of this world is gone
c. when every motive to speak falsehood is silenced
d. the mind is induced by the most powerful considerations to speak the

truth ,
e. a situation so seldom and so lawful is considered by law as creating

an obligation equal to that which is imposed by a positive oath
administered in a Court of Justice.
• A case study - A three-Judge bench of the Humble Supreme Court of

India , laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra ,
the following five grounds regarding admissibility of dying declaration in
evidence under section 32 (1) of the Indian Evidence Act.
1. Section 32 is an exception to the rule of hearsay and makes admissible

the statement of a person who dies , whether the death is a homicide or
suicide , provided the statement relates to the cause of death , or
exhibits circumstances leading to the death . In this respect, the Indian
Evidence Act, in view of the peculiar conditions of our society and the
diverse nature and character of our people, has thought it necessary to
widen the sphere of Section 32 to avoid injustice.
! !271
MEDICO LEGAL ISSUES
2. The test of proximity cannot be too literally construed and practically

reduced to a cut- and-dried formula of universal application so as to be
confined in a straitjacket. Distance of time would depend or vary with
the circumstances of each case. For instance where death is a logical
culmination of a continuous drama long in process and is, as it were, a
final of the story, the statement regarding each step directly connected
with the end of the drama would be admissible because the entire
statement would have to be read as an organic whole and not torn from
the context. It is manifest that all these statements come to light only
after the death of the deceased who speaks from death. For instance,
where the death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3 or 4 months the
statement may be admissible under section 32.
3. The second part of the clause (1) of section 32 is yet another exception
to the rule that in criminal law the evidence of a person who was not
being subjected to or given an opportunity of being cross-examined by
the accused , would be valueless because the place of cross-
examination is taken by the solemnity of oath for the simple reason that
a person on the verge of death is not likely to make a false statement
unless there is strong evidence to show that the statement was secured
either by prompting or tutoring .
4. It may be important to note that section 32 does not speak of homicide

alone but includes suicide also, hence all the circumstances which may
be relevant to prove a case of homicide would be equally relevant to
prove a case of suicide.
5. Where the main evidence consists of statements and letters written by

the deceased which are directly connected with or related to her death
and which reveal a tell-tale story , the said statement would clearly fall
within the four corners of section 32 and , therefore , admissible . The
distance of time alone in such cases would not make the statement
irrelevant
! !272
MEDICO LEGAL ISSUES
4.11.2. Evidentiary value of dying declaration:-
• An accused can be convicted solely on the basis of a dying declaration

but it is not safe to do so without further corroboration because such a
statement is not made on oath and is not subject to cross-
examination .The maker of such a statement might be mentally and
physically in a state of confusion and might well be drawing upon his
imagination when he was making his declaration.
• The followings are laid down by the Hon'ble Supreme Court of India as
the principles governing the weighing of dying declaration as evidence.
1. It cannot be laid down as an absolute rule of law that a dying

declaration cannot form the sole basis of conviction, unless it is
corroborated.
2. Each case must be determined on its own facts, keeping in view the
circumstances in which the dying declaration was made.
3. It cannot be laid down as a general proposition that a dying declaration

is a weaker kind of evidence than other pieces of evidence.
4. A dying declaration has to be judged in the light of surrounding

circumstances.
5. A dying declaration which has been recorded by a competent

Magistrate, in the proper form of question and answers, and as far as
practicable, in the words of the maker of the declaration, stands on the
much higher footing than a dying declaration which depends upon oral
testimony, which may suffer from all the infirmities of human memory
and human character.
6. Once the court has come to the conclusion that the dying declaration
was the truthful version as to the circumstances of the death and
assailants of the victim, there is no question of further corroboration .If,
on the other hand, the court after examining the dying declaration in all
its aspects and testing it's veracity, has come to the conclusion that it is
not reliable by itself and suffers from infirmities, then without
corroboration, it cannot form the basis of a conviction.
! !273
MEDICO LEGAL ISSUES
Case Laws
Kanti Lal v State of Rajasthan / Citation: AIR 2009 SC 2703 / Supreme

Court of India / SS. 304B and 498A IPC, S. 113B Indian Evidence Act
In this case the accused asked for Rs. 50,000/- as loan for starting a
business which they wanted to be treated as dowry by the parents of the
deceased. The in-laws did not allow the deceased to go with her father to
her paternal home just ten days before the death of the deceased unless
the loan of Rs. 50,000/- had been adjusted and treated as dowry money.
On refusal by her father, the husband of the deceased started ill-treating
her. Finally, the girl's parents came to know that she is in hospital, wherein
she was brought with severe burn injuries, causing her death.
The Court in this case relied upon the decision made by SC in Hira Lal and
Ors. v State [Govt. of NCT] AIR 2003 SC 2865, this Court reiterated that
the essential ingredients to attract application under Section 304B are that:
i. the death of a woman should be caused by burns or bodily injury or

otherwise than under a normal circumstance
ii. Such a death should have occurred within seven years of her marriage,
iii. She must have been subjected to cruelty or harassment by her husband
or any relative of her husband,
iv. Such cruelty or harassment should be for or in connection with demand

of dowry, and
v. Such cruelty or harassment is shown to have been meted out to the

woman soon before her death.
Further it is said that the presumption under Section 113B of Evidence Act,
1872 is a presumption of law. On proof of the essential mentioned therein,
it becomes obligatory on the court to raise a presumption that the accused
caused the dowry death. The essentials required to be proved for raising
the said presumption are that:
! !274
MEDICO LEGAL ISSUES
i. The question before the court must be whether the accused has
committed the dowry death of the woman,
ii. the woman was subjected to cruelty or harassment by her husband or

his relatives,
iii. Such cruelty or harassment was for or in connection with any demand
for dowry, and
iv. Such cruelty or harassment was soon before her death.
• Further, the Court herein discussed the proper way to prepare dying
declaration also.
• The suggestion by the court that dying declaration to be made more

legally competent
a. must be recorded in the presence of magistrate
b. the dying declaration should be put in question and answers form
c. If the doctor happened to be present at the time of recording of the

dying declaration and he had heard the statement made by the
deceased, he would ordinarily endorse that the statement had been
made to his hearing and had been recorded in his presence
d. Do the recording of the entire dying declaration as it is necessary of

exact statement made by the deceased should be available to the
Court.
• In the present case, these basic principles are ignored by D.W. 2 at the
time of recording of the alleged dying declaration of the deceased. As
noticed above, the doctor has not made any endorsement on the dying
declaration to state that it was recorded in his presence and attested
by him. The mother of the deceased refused to put her thumb-
impression on the said document.
• Finally, the Supreme Court upheld the conviction of husband and jeth
(brother-in-law) of the deceased for 10 years u/S. 304B and 3 years u/
S. 498A.
! !275
MEDICO LEGAL ISSUES
4.12 MEDICAL NEGLIGENCE
4.12.1. Introduction: - Medical negligence is sometimes called as

professional misconduct may also be described as malpractice. Most
instances of medical negligence lie completely within the civil law and
cases where negligence has been so gross as to constitute a criminal
offence are exceptionally rare.
4.12.2. LAW OF TORTS:
Negligence, medical or otherwise, is a civil wrong known as a tort, where a

person fails to take proper care, so that damage results. For negligence of
any kind to be proved, it must be shown that all four of the following
components exist:
1. That the defendant (doctor) owed a duty of care to the plaintiff

(patient).
2. That the defendant was in breach of that duty.
3. That the plaintiff suffered damage.
4. That the damage was caused by the breach of duty of care while patient
was admitted under him.
5. Applied to the medical situation, negligence is a failure of the duty owed

by a doctor to his patient, to exercise reasonable care and skill resulting
in some bodily, mental or financial disability.
4.12.3. The Duty of Care:
• A doctor must possess a reasonable degree of proficiency. This degree of

competence is not a fixed quality, but varies according to the status of
the doctor - experience, qualification etc. Though there is a minimum
level of competence for all doctors, the standard of skill varied through a
whole spectrum from new graduate to senior consultant.
• No doctor can be expected to neither be aware of all current medical

knowledge nor be able to apply to known diagnostic and therapeutic
techniques.
! !276
MEDICO LEGAL ISSUES
• A house surgeon is not expected to possess the same skills as a

consultant surgeon but at the same time, he is expected to confine his
activities (except in emergencies) to a level of medical care which is
within his competence. A house surgeon electing to perform a major
surgical operation, not in an urgent situation, might be held guilty of
negligence, if damage ensues.
• Where senior doctor delegates a task to junior, he must assure himself

that this assistant is sufficiently competent and experienced to do the
job; if damage occurs as a result of improper delegation, then the senior
doctor may have carry part or even all the responsibility.
• The negligence can only occur when a doctor-patient relationship is

established. This relationship may be formed easily, such as charging a
fee or inclusion on a practice list. Even in an acute emergency, once a
doctor approaches on all or injured person with the intention of assisting
him, then a completely valid duty of care is set up.
• A doctor is not negligent if he does not offer his services is an emergency

to a person who is not already his patient, as no doctor patient
relationship exists, though the ethics are questionable.
4.12.4. Breach of Duty of a doctor toward his patient is said to

occur when he is
a. Not able to Exercise Reasonable Skill and Care towards his patients
b. A doctor breaches his duty of care when he fails to reach the standard
of proficiency expected of him.
c. The level of this expectation is set by 'peer review'.
d. What a substantial number of doctors skilled in the same specialty

would have done in exactly the same circumstances if they had been in
his place at that time
e. The breach may be one of commission or omission, that is either doing

something wrong or failing to do something right. Carelessly taping off a
urethra during a hysterectomy is an act of commission whilst failing to
give ant tetanus toxoid after a penetrating harming injury would be one
! !277
MEDICO LEGAL ISSUES
of omission. Similarly operating on the wrong limb, is an act of

commission.
4.12.5. Damage Suffered by the Patient:
However careless the doctor might be, a patient cannot sue him for
negligence if no damage has been caused. The plaintiff must have suffered
some loss which can be measured and compensated for in terms of money.
Examples of such loss are:
1. Loss of earning or his livelihood , whether due to enforced absence from

work of prevention or impairment of his ability to carry on his previous
occupation, so that he is forced to take employment at a lower level of
salary; or from loss of expectation of life and the consequent shortening
of the earning period. Like loss of eye sight in a truck driver due to
treating doctors fault.
2. Expenses or his daily earnings, like craftsman uses his hand skill to
sculpture is art on mud , clay etc and earn by selling his art, so if he
loses his hand in some Sx , due to the treating doctor's fault, then it will
lead to his loss in daily earnings.
3. Reduction in expectation of life, like vegetative health due to

mismatched blood transfusion, apart from the financial aspect.
4. Reduced enjoyment of life, from any physical or mental consequence of

the negligent act. Examples would be loss of mobility of limb or sense,
which would reduce mobility or appreciation of his surroundings.
5. Especially in the case of women, some physical disability or

disfigurement which might reduce the chances of marriage or ability to
have further children might also be actionable. Especially seen after
treatment of dermatological disorders of the face lesions.
6. Pain and suffering, whether physical or mental, may also be taken into
account, as May mental or nervous shock. Like of loss precious
pregnancy (after I.V.Rx) due to gynecologist negligence.
7. Death may be actionable for the benefit of dependent relatives, like loss
of severe blood loss on operation table due to failure to achieve
! !278
MEDICO LEGAL ISSUES
homeostasis, by cutting the wrong artery, such as damage to uterine

artery while doing LSCS Sx.
4.12.6. Error of Clinical Judgment:
• There is widespread misapprehension amongst the public and even some

lawyers, that if anything goes wrong with medical treatment or
diagnosis, then inevitably there must have been negligence on the part
of the doctor.
• Most mishaps comes within the ambit of an 'error of clinical judgment',

which is not negligence. There is often a very fine line between the two
situations and a grey area in which diversity of opinion may be found on
poor view.
• However, a doctor is not legally liable for genuine errors of judgment

either in diagnosis or treatment. So long as he applies a reasonable
standard of skill and care in coming to that judgment, he cannot be held
negligent. As his error is not due to a degree of incompetence,
carelessness of recklessness.
• A doctor does not guarantee to provide the best possible care, but only
care consistent with his professional status. As yet another famous judge
said, 'Doctors are not insures' and cannot guarantee the perfect result
expected of an architect or civil engineer. For example surgery is an art
of surgeon, so if any things go wrong, then such type Sx mishaps will
lead to delayed wound healing and wound gaping.
4.12.7. The Burden Of Proof:

Normally, the task of proving negligence rests upon the plaintiff the person
bringing the action, so the defendant does not need to prove his innocence.
An exception to this general rule that the 'burden of proof rests upon the
plaintiff, is in cases where the facts are so obvious that the onus is shifted
to the doctor to prove that he was not negligent. This doctrine of (the facts
speak for themselves) applies when, for instance, the wrong limb or digit is
amputated at operation. It is for the surgeon, to show-if he can that the
negligence was not his doing.
! !279
MEDICO LEGAL ISSUES
4.12.8. Contributory Negligence:
• The patient does something on his own account to worsen the injury or
retard its recovery. This may occur when, for example the patient
tampers with his dressings and induces infection; or removes a plaster
cast or bandage; or more commonly, ignores instruction to return for
further treatment or follow-up.
• In such cases the damaged recoverable in respect thereof shall be

reduced to such an extent as the court thinks just and equitable, having
regard to the claimant's share in the responsibility for the damage. In
claiming that there was contributory negligence, that it existed. For
example patient not putting eye drops, and constantly rubbing his eyes ,
post cataract Sx and development of post operative infection in the
operated eyes. So in this case, it is entirely due to patients fault or his
negligence and treating doctor will not be held responsible for it.
4.12.9. Common Forms of Medical Negligence:
Medical negligence may assume a variety of forms. These include the

following:
i. Failure to attend: Failure of a general practitioner to respond to a

request for attendance may form grounds for an action for negligence,
especially in relation to emergencies. For example patient in gasping
state, post hernia Sx, and treating surgeon not attending the patient, in
acute emergency.
ii. Amputation of the wrong limb or digit: Carelessness in hospital

notes, errors in preoperative skin marking and failure to check notes
against the patient in the operating theatre are common causes for this
highly actionable misadventure. A similar mistake involves operating on
the wrongs patient altogether.
iii. Negligence in operation: Any surgical procedure may give rise to

allegations of negligence but orthopedics, obstetrics, surgery and
gynecology are high risk specialties. Missed fractures tight plaster casts
and poor results from spinal procedures are common complaints in
orthopedics. In obstetrics, damage to the newborn from anoxia or
forceps procedures damages of great magnitude. Failed tubal
! !280
MEDICO LEGAL ISSUES
sterilization is another common cause for litigation in gynecology, as is a

failure of vasectomy in general surgery. A common error is operating on
wrong side and if the operation is performed on an organ and another is
injured. Leaving behind surgical swab post LSCS, & patient presenting
with severe abdominal pain and occurrence of septicemia.
iv. Retention of objects in operation sites: Where swabs, packs, towels

or instruments may be left behind in the abdomen after operation, the
responsibility remains with the surgeon and even if the theatre sister
has the actual task of maintaining a swab count. The surgeon must
satisfy himself that she is correct before closing the abdomen.
v. Accident and emergency departments: In the medico-legal sense

the A & E department is the most dangerous part of a hospital. Until
recent years it was commonly the practice for the least experienced
doctors to deal with this most hazardous department. Fractures, head
injuries and lacerations account for much of the danger and junior staff
employed in A & E departments should not hesitate to request the
advice of more senior colleagues where there is the slightest doubt as to
the proper course of action. Usually hospital casualty department is now
days managed by orthopedics, physician, general surgeon, pediatrician,
gynecologist, anesthetist, etc who have round the clock duty in the
casualty.
vi. Anesthesia: Anesthesia is a potential source of allegation of

negligence. The constant vigilance during anesthesia falls within the
ambit of duty of the anesthetist. It is the duty of anesthetist to check
the equipments like Boyle's apparatus and machine such as suction and
resuscitation machine; tracheotomy tray etc prior to operation and also
those they function correctly throughout the period when the patient
was dependent on it. An anesthetist administered chloroform in spite of
the availability of another drug. The patient died. The anesthetist had to
pay compensation. It is very important especially when incubating the
patient for general anesthesia cases and resuscitates the patients post
surgery in the recovery room.
In spinal anesthesia, selection of the proper site (to avoid damage to the
chord) is expected. In one case higher injection of spinal anesthesia
resulted in injury. The anesthetist had to pay damages.
! !281
MEDICO LEGAL ISSUES
vii.Negligent exposure of patient to infection: The professionals

cannot escape their liability in tort for negligent performance of duty,
even if he does the work free of cost of for good-will reasons. An eye
camp was organized for extending expert ophthalmic surgical services
to the cataract patients of a particular place in Uttar Pradesh.
Unfortunately, the operated eye of patients was irreversibly damaged
due to post operative infection i.e. developing endophthalmitis in the
operated eyes by contaminated the normal saline used at the time of
surgery. Public interest litigation was filed before the Supreme Court.
The court directed the State Government to pay Rs. 12,500/- to each
victim as a compensation for the negligence (A. S. Mittal vs. State of
U.P. (1989) 3 SCC 2230.
viii.Negligent administering of wrong medicine: A medical practitioner

is held liable even if wrong medicine is administered by mistake. A
simple lack of care would amount to civil liability. But, when a person
knowingly acts different to risk it will amount to recklessness, and
negligence or rashness of very high degree would amount to criminal
negligence. As held in Juggankhan Vs. State of Madhya Pradesh (1965),
(ICSR 14:1965 SC 831) by the Supreme Court that when a registered
Homeopath administered the medicine without thoroughly studying the
effect of treatment given, it is a rash and negligent act to prescribe
poisonous medicine without studying their probable effects.
ix. Negligence in post-operative care: After the operation, hospital

authorities are expected to take reasonable care of the patient. The
Plaintiff was suffering from an injury in the third and fourth fingers of
his left hand. He was operated on at the defendant's hospital, by a
surgeon. After the operation, the plaintiff's hand and forearm were
bandaged to a splint and kept like that for two weeks. During this time,
the plaintiff complained of pain. However, the surgeon took no action,
apart from giving sedatives. When the bandages were removed, all four
fingers of the plaintiff's hand were stiff and the hand was practically
useless. The defendant (hospital) was held liable for the negligence of
the surgeon.
x. Therapeutic hazards: Drugs with well known potential dangers must

also be handled with care. For instance, it would be negligent for a
doctor to give penicillin to a penicillin allergic patient if he was aware of
the possible allergy or had not enquired as to its presence. Substance
! !282
MEDICO LEGAL ISSUES
known to cause serious or fatal reactions such, ATS should only be

administered after a test dose. Another common error is the
administration of the wrong drug or the wrong dose of the right drug.
4.12.10. Hospitals are liable for the Negligence of its Employees in

India:
• According to the Madras view, a suit for damages does not lie against the
Government is such cases. In the Madras case, child has been admitted
in Government hospital for treatment. On discharge, the child was
handed over to a wrongs person and the parents were later unable to
trace the child. They used government for negligence, but failed. The
High Court held that running a hospital was a sovereign function and the
Government was not liable for acts done in the performance of sovereign
functions.
• However, the Bombay view on the subject is different. The Bombay High
Court had held that the State is liable in such cases. But it should be
added that before suing, the Government or a public officer, two months
written notice is necessary, under section 80, Code of Civil Procedure,
1908.
• Now, it is a well settled law, that hospital whether it is government,

public or private, when the services are provided in lieu of consideration
the hospital is liable for any negligent act. But, when a hospital is
providing services free of charge it is not held to be liable for negligence
of employees. When Doctors fail in performing or commit lapse
advertently then they are open for both Criminal and Civil Liability.
4.12.11. Criminal Liability:
It arises when it is proved that doctor committed or omitted that was

grossly rash or negligent which was direct or subsequent cause of patient
death under 304 (A) doctor is punishable with imprisonment for 2 years or
fined or both. This is a bailable offence. Police cannot hold a doctor once
bail papers are furnished. In a wrongfully confinement by Police a Station
House Officer can be charged under section 342 of IPC. So In the cases of
criminal liabilities against treating doctors, leading to the death of the
patient, the treating doctor may imposed with which of the following
punishments
! !283
MEDICO LEGAL ISSUES
a. Bailable offence
b. Doctor may get imprisonment for 2 years
c. Doctor may be fined
d. Both of the above can be imposed
4.12.12. Civil Liability:
It arises in case of medical services rendered on payment of a fee. These

come within purview of section 73 and 74 of India Contract. In a suit by
patient onus is on patient to prove that Doctor was negligent. Even if
patient does not pay, civil liability can arise under law of torts to all
category-Private or Government.
In India, the number of suits against physicians for torts or civil wrongs
such as negligence, assault, etc. is insignificant, perhaps less than 0.001%
physicians are dragged to the court by their patients. The corresponding
figures for an advanced country like U.S.A. are 1.5%.
4.13 LEGAL ISSUES IN RELATION TO HEALTH CARE IN

INDIA
4.13.1. Health Legislation in India:
• In 1997 workshop organized by Department of Forensic Medicine, AIIMS

and world Health Organization of Health Legislation in India. Health
legislations are to monitor the overall health and the environment of any
society therefore its knowledge and understanding
• The role of the medical experts engaged in health care system is all
except
a. to implement sound health policies

b. to protect the health of the people and the society
c. to safe guard his own interest
• Therefore an additional category numbered as twenty third categories

has been added e.g. the medico-legal responsibilities of the physicians in
medical practice.
! !284
MEDICO LEGAL ISSUES
• Various Health legislations are passed by parliament in India in last 5

years covering the areas of health manpower, disease control, Family
health, Reproduction, Mental Health, Food Safety, Control of toxic
chemicals, Smoking alcohol consumption and manufacture, Marketing,
manufacturing and safety of pharmaceuticals and Medical devices.
Recently health legislation are aimed to curb smoking and intake of
tobacco, uses of only generic medicines, swatch bharat abhiyaan etc.
• Policies, Health legislation are dealt as Separate Acts pertaining the

health, environment, industry and chemicals etc. In addition to IPC,
CrPC, IEA and Civil Procedures Codes in India.
4.13.2. Historic Judgment in Medico legal Work:
On August 28, 1989, the Supreme Court of India "before Sri Rangnth
Mishra & G. L. Oza JJ. In case Pt. Paramanand Katara Vs. Union of India" &
others, delivered as historic judgments covering wide range of problems
pertaining to medico legal work in this country. The judgment is land-mark
in the history of medical practice in India as it deals with almost all
important aspects of medico legal procedures like immediate radical aid to
injured person, police formalities, zoning of hospitals, formalities of
evidence of doctors and attendance of doctors in courts of law etc. This
judgment shall be followed by the lawyers, police and courts all over the
country. I am of the considered opinion that if this judgment is followed
there will be definite improvement in the case of the critically ill / injured
patients in Emergency Department. This judgment will remove the
unwarranted fear from the mind of medical practitioners of getting involved
in legal processes by treating a medico legal case. It will also improve the
standard of the medico legal work as the medical expert will have enough
time and shall feel secured. Further, it will help to simplify the medico legal
procedures at par with the other developed countries.
! !285
MEDICO LEGAL ISSUES
4.14 MEDICAL COUNCIL BILL:
The Delhi assembly passed a Bill on January 1997 giving this city its first
medical council, with powers to register practitioners and "lay down and
administer code of conduct" for the profession. Bill was introduced by
health minister Harash Vardhan in the last session of the assembly in July-
August. But it was not passed as several ruling party MLAs insisted the
council should include a legislator. Health minister had opposed this
suggestion saying, "How can you have a legislator in a council of
professional doctors?" they have, however, now been put in the disciplinary
committee of the council. MLAs will not be in the council though, as there
are specific rules and qualification for members, starting with being
registered practitioners of some years standing.
4.14.1. The Indian Medical Council Act, 1956:
An act to provide for the reconstitution of the Medical Council of India and
the maintenance of a Medical Register for Indian and for matters connected
therewith.
Be it enacted by Parliament in the Seventh Year of the Republic of India as

follows:
1. This act may be called the Indian Medical Council act, 1956.
2. It extends to the whole of India.
3. It shall come into force a date as the Central Government may, by

notification in the Official Gazette, appoint.
! !286
MEDICO LEGAL ISSUES
4.14.2. Constitution and composition of the Indian medical council:
1. The Central Government shall cause to be constituted a Council

consisting of the following members :
a. one member from each state other than a union territory, to be
nominated by the Central Government in consultation with the State
Government concerned;
b. one member from each University, to be elected from amongst the

members of the medical faculty of the University by members of the
Senate of the University or in case the University has no Senate by
members of the Court;
c. one member from each State in which a State Medical Registrar is

maintained, to be elected from amongst themselves by persons
enrolled on such Register who possess the medical qualifications
included in the First or the Second Schedule or in Part II of the Third
Schedule;
d. seven members to be elected from amongst themselves by persons

enrolled or any of the State Medical Registers who possess the
medical qualifications included in Part I of the Third Schedule;
e. Eight members to be nominated by the Central Government.
2. The President and Vice-President of the Council shall be elected by the

members of the Council from amongst themselves.
3. No act, done by the Council shall be questioned on the ground merely of

the existence of any vacancy in or any defect in the constitution of the
council.
4.14.3. Mode of election:
1. An election under clause (b) clause (c) or clause (d) of sub-section (1)
of section 3 shall be conducted by the Central Government in
accordance with such rules as made by it in this behalf, and any rules so
made may provide that pending the preparation of the Indian Medical
Registrar in accordance with the provisions of this Act, the members
referred to in clause. (D) Of sub-section (1) of section 3 may be
! !287
MEDICO LEGAL ISSUES
nominated by the Central Government instead of being elected as

provided therein.
2. Where any dispute arises regarding any election to the Indian medical
Council, it shall be referred to the Central Government whose decision
shall be final.
4.14.4. Restrictions or nomination and membership:
1. No person shall be eligible for nomination under clause (A) of sub-

section (1) of section 3 unless he possesses any of the medical
qualifications included in the First and Second Schedules, resides in the
State Medical Register is maintained in that State is enrolled on the
register.
2. No person may at the same time serve as a member in more than one
capacity.
4.14.5. Incorporation of the Council - The Council so constituted shall

be a body corporate by the name of the Medical Council of India, having
perpetual succession and a common seal, with power to acquire and hold
property, body movable and immovable and to contract and shall by the
said name sue and be sued.
4.14.6. Term of office of President, Vice-President and Members -
1. The President or Vice-President of the medical Council of India shall hold

office for a term not exceeding five years and not extending beyond the
expiry of his term as member of the Council.
2. Subject to the provisions of this section, a member shall hold office for a
term of five years from the date of his nomination or election or until his
successor shall have been duly nominated or elected, whichever is
longer.
3. An elected or nominated members shall be deemed to have vacated his

seat if he is absent without excuse, sufficient in the opinion of the
Council, from three consecutive ordinary meetings of the Council or in
the case of member elected under clause (B) of sub-section (1) of
section 3, if he ceases to be a member of the medical faculty of the
! !288
MEDICO LEGAL ISSUES
University concerned, or in the case of a member elected under clause

(C) or clause (D) of that sub-section, if he ceases to be a person
enrolled on the State Medical Register concerned.
4. A casual vacancy in the Council shall be filled by nomination or election,

as the case may be and the person nominated or elected to fill the
vacancy shall hold office only for the remainder of the term for which
the member whose place he takes was nominated or elected.
5. Members of the Council shall be eligible for re-nomination or re-election.
6. Where the said term of five years terms of the president of medical
council of India is about to expire in respect to any member, a successor
may be nominated or elected at any time within three months before
the said term expires but he shall not assume office unit the said term
has expired.
! !289
MEDICO LEGAL ISSUES
Summary:
Medicolegal cases: Cases requiring medical treatment, by the same time

involves information to the law enforcing authorities is called a medico
legal case. Formalities for a M. L. C. are entries like Name / Age / Sex /
Date / Time / I.P. No. / Hosp. No. / Type of M. L. C. is done in the main
Emergency Register, All M. L. C's are registered / admitted ,Case is
examined and case sheet written by the duty Casualty Medical
Officer ,Accident Register (A. R.) two copies and Police Intimation (P.I)
three copies are written, The original P. I. from should be dispatched to the
assigned Police Station as quick as possible (not later than 24 hours) and
the signature of the receiving Police Officer should be obtained.
Consent- Consent is fundamental and established principle in the Indian

law. Every person has the right to determine what shall be done to his
body. Self-defense of body (IPC sections 96 to 102, 104, 106) provides
right to the protection of bodily integrity against invasion by other.
All medical procedures, including examinations, diagnostic procedures and

medical research on patients potentially acts of bodily trespass or assault
(IPC 351), in the absence of consent or statutory sanction. Treatment and
diagnosis cannot be forced upon anyone who does not wish to receive
them except in statutory sanction.
Confidentiality: Privacy and confidentiality are cornerstones of the

doctor-patient relationship. Patients must feel comfortable disclosing all
relevant information, most of which is highly sensitive in nature (bodily
functions, physical, sexual activities, medical history etc.). With this
information, doctors can then provide the proper diagnosis and treatment.
Health legislation in India is specific to certain health conditions including

mental/ physical illness, disability, communicable diseases and HIV/AIDS.
Medical Council of India's Code of Ethics Regulations, 2002The Medical
Council of India (MCI) Code of Ethics Regulations sets the professional
standards for medical practice.
Medical Records: The medical record is a document which contains

statements by trained observers of conditions found and results of
treatment.
! !290
MEDICO LEGAL ISSUES
The medical record department shall be under the supervision of a

competent, qualified person and preferably, a trained medical record
librarian who is responsible to the administrator.
Hospitals are also to maintain the following registers - O.P.D. register,

Indoor register, Operation theatre register, Delivery register, Birth & Death
register, Lab register, Radiology including imaging register, Nurses register
& nigh report, MLC (Medico Legal Case) registers, MTP (Medical
Termination of Pregnancy) registers, Family planning device register etc.
Medical Certificates : The various certificates that are issued by the

doctor in his professional capacity are Admission / Discharge certificate,
Emergency admission certificate, Birth record certificate, Medical
Termination of Pregnancy certificate, Maternity certificate, Leave certificate
etc. Giving a false certificate is a criminal offence.
Dying declaration is provided by section 32, sub-section 1, of the

Indian Evidence Act. According to this section, dying declaration is
the declaration of a dying person as to the cause of his death or as
to any of the circumstances of the transaction which resulted in his
death when the cause of his death is in question.
Medical negligence is sometimes called as professional misconduct may

also be described as malpractice. Most instances of medical negligence lie
completely within the civil law and cases where negligence has been so
gross as to constitute a criminal offence are exceptionally rare.
A doctor is not negligent if he does not offer his services is an emergency

to a person who is not already his patient, as no doctor patient relationship
exists, though the ethics are questionable. Most mishaps comes within the
ambit of an 'error of clinical judgment', which is not negligence. There is
often a very fine line between the two situations and a grey area in which
diversity of opinion may be found on poor view.
Common Forms of Medical Negligence are Failure to attend , Amputation of

the wrong limb or digit , Negligence in operation , Retention of objects in
operation sites, Accident and emergency departments, Anesthesia ,
Negligent exposure of patient to infection, Negligent administering of
wrong medicine
! !291
MEDICO LEGAL ISSUES
Health Legislation in India : In 1997 workshop organized by

Department of Forensic Medicine, AIIMS and world Health Organization of
Health Legislation in India.
Various Health legislations are passed by parliament in India in last 5 years

covering the areas of health manpower, disease control, Family health,
Reproduction, Mental Health, Food Safety, Control of toxic chemicals,
Smoking alcohol consumption and manufacture, Marketing, manufacturing
and safety of pharmaceuticals and Medical devices.
Medical Council Bill : The Delhi assembly passed a Bill on January 1997
giving this city its first medical council, with powers to register practitioners
and "lay down and administer code of conduct" for the profession.
The Indian Medical Council Act, 1956 : An act to provide for the
reconstitution of the Medical Council of India and the maintenance of a
Medical Register for Indian and for matters connected therewith.
Review Questions:
a. What are the types of Medicolegal cases?
b. What are the cases come under the category of grievous injuries?
c. What are the different types of consents? Who can give consents?
d. What do you understand by Medical Records and explain the

characteristics of Medical Records?
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………… 
! !292
MEDICO LEGAL ISSUES
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
! !293
LAWS PERTAINING TO MANUFACTURE AND SALE OF DRUGS
Chapter 5
Laws Pertaining to Manufacture and Sale of
Drugs
5.0 Laws pertaining to Drugs
5.1 Drug and cosmetics Act ,1940

5.1.1 The Drugs And Cosmetics Act import prohibition
5.1.2 Inspector under Drug and cosmetics Act
5.1.3 The Drugs and Cosmetics (Amendment) Act of 1964
5.2 Pharmacy Act ,1948

5.2.1 Central Pharmacy Council
5.2.2 State Pharmacy Councils
5.2.2.1 Registration of Pharmacists
5.2.2.2 Penalty for False Claims
5.3 Drugs and Magic remedies ( objectionable advertisement) Act ,1954
5.4 Poison Act, 1919
5.5 Legislation for tobacco control
5.6 Narcotic drug and psychotropic substance act, 1985
! !294
5.0 LAWS PERTAINING TO MANUFACTURE AND SALE OF

DRUGS
In the beginning of the current century the scope of Drug Industry was
practically non-existent in India and pharmaceuticals products were being
imported from abroad. The Government of India analyzed the situation and
considers the matter introducing legislation in the parliament to control the
manufacture, distribution and sale of drugs and medicines.
To have a comprehensive legislation over the rapid expansion of the

pharmaceutical production and drug market, in 1931, Government of India
appointed a Drug Inquiry Committee under the chairmanship of Lt. Col. R.
N. Chopra who was asked to make stifling inquiries into the whole matter
of drug production, distribution and sale by inviting opinions and meeting
concerned people. The Chopra Committee toured all over the country and
after carefully examining the data placed before it, submitted a report to
Government and suggested creation of drug control machinery at the
Center with branches in all Provinces. For an efficient and speedy working
of the controlling department, the Committee also recommended the
establishment of a well-equipped Central Drugs Laboratory with competent
staff and experts in various branches of drug standardization work. For the
training of young men and women, the Committee recommended the
formation for Central Pharmacy Council and the Provincial Pharmacy
Councils, with registrars who would maintain the lists containing names
and addresses of the licensed pharmacists.
There are several Acts relating to manufacture and sale of drugs in India.
Among them the following laws operate at present in the country:
1. The Drugs and Cosmetics Act of 1940.
2. The Pharmacy Act of 1948.
3. The Drugs and Magic Remedies (Objectionable Advertisement) Act of

1954.
4. The Narcotic Drugs and Psychotropic Substances Act, 1985.
5. The Poisons Act of 1919.
! !295
5.1 THE DRUGS AND COSMETICS ACT OF 1940.
• The object of the Act is to regulate the import, manufacture, distribution

and sale of drugs.
• Under the provisions of this Act, the Central Government appoints the
Drugs Technical Advisory Board (DTAB) to advise the Central Government
and the State Government on technical matters arising out of the
administration of this Act. The Board can constitute sub-committees for
the consideration of a particular matter.
• The Central Government may also constitute the Drug Consultative

Committee to advise the Central Government, the State Government and
the Drugs Technical Advisory Board on any matter tending to secure
uniformity throughout India in the administration of this Act.
5.1.1. The Drugs And Cosmetics Act prohibits import of:
a. Any drug (or cosmetic) which is not of standard quality
b. Any misbranded drug or spurious cosmetic such as cosmetics to cure

vitiligo and psoriasis in an adult
c. Any adulterated or spurious drug
d. Any drug (or cosmetic) for the import of which a license is prescribed ,
for manufacture in India , so that the indigenous pharmaceutical
company's profitability is not affected
e. Any patient drug, if it is not labeled in prescribed manner displaying its

true formula
f. Any drug which claims to cure and mitigate diseases prescribed such
now days many companies claims to increase the mental growth and
the heights of the patients.
g. Any cosmetic containing unsafe of harmful ingredient; and
h. Any drug for which import is banned under the Act
! !296
• For any contravention of above mentioned provisions of the Act, the

punishments prescribed vary from one year life imprisonment and with
fine depending on the nature of the offense.
• The Central Government has been given powers to import and

manufacture for sale or distribution of such drugs which are
therapeutically irrational or which involve risk to human beings or
animals.
• The Central Government and the State Governments can appoint

Analysts with prescribed qualifications for specified drugs.
5.1.2. According to the drug and cosmetic Act 1940, the Government may
appoint drug Inspectors who possess the requisite qualifications. The
Inspectors can inspect any premises wherein any drug is being
manufactures and take sample for which fair price will be paid. Obstruction
to the work of an inspector is punishable with which of the punishment of
A. Imprisonment up to 3 years
B. Fine can be imposed as per the offense
• The roles of drug inspector appointed by GOI as per drug and cosmetic
act 1940.
A. Inspectors can inspect any premises wherein any drug is being

manufactures
B. Can take sample, if he suspects the quality of drug or its ingredients

not properly maintained
C. He can also enter and search at all reasonable times any place where
he believes any offense is being committed and size stocks of drugs.
D. He can send the drug sample to be examined by Central drug

laboratory whose decision will be binding on both the parties.
The Drug and Cosmetics Act has been amended in 1945, 1964, 1972, 1982
and 1986. The comprehensive amendments to the Act were made in 1964
and 1982.
! !297
5.1.3. The Drugs and Cosmetics (Amendment) Act of 1964:
The object of the amendment was two-fold, first to bring Ayurvedic and
Unani drugs which were till then not covered by the law within the scope of
the Act, secondly, to prohibit, the import, manufacture, sale etc. of
adulterated, misbranded, spurious or substandard drugs.
Under the provisions of the amendment a drug & cosmetic Act 1964 a drug
shall be deemed to be adulterated , if it contains
A. If it consists, in whole or in apart filthy, putrid or decomposed substance
B. If it has been prepared, packed or stored under insanitary conditions
C. If its container is composed of any poisonous or deleterious substances,

if any
D. If packed substance is likely to reduce its quality or strength of the

medicines
The punishment protocol introduced or has been enhanced in amended

drug and cosmetic act 1964 are
A. Anyone convicted second time of an offense under clause (a) of section

27 will be imprisoned for not less than two years
B. Or it may extend to ten years
C. he will also be liable to fine according to the offense
D. In clause (b) of the same section for the words "five years" the words
'ten years' have been substituted.
! !298
It came into force with effect from 1st February, 1983. The main
amendment made is:
a. The definition of the term 'drug' has been enlarged. Preparations

used for repelling insects like mosquitoes, all substances intended for
use as components of drugs including empty gelatin capsules and
devices used in diagnosis, treatment etc. of diseases (to be notified) are
drugs. Like gelatin coated anti-oxidant used in the elderly patients.
b. Definitions of misbranded, adulterated drugs have been

rationalized. A new term spurious Ayurvedic, Siddha or Unani drug has
been provided for the first time. Similar misbranded and spurious
cosmetics and misbranded and adultered Ayruvedic, Siddha drugs have
been defined.
c. The Central Government has now acquired powers to ban by

notification import and manufacture of such drugs which involve risk to
human beings or animals or are therapeutically unsound.
d. Punishment for various contraventions of the provisions of the

Act has also been rationalized. For a drug, which is adulterated
and is likely to cause death or grievous hurt, imprisonment of not less 5
years which may extend to life imprisonment has been provided.
For adulterated and spurious drugs the punishments are up to three and
five years respectively.
e. Powers of Inspectors have been enhanced. They can now stop and
search any vehicle or vessel or any other conveyance.
f. Provision has been made for summary trail of offenses under this Act.
Sections 26 to 32 have been amended and this empowers any persons of

consumer association to take samples of drugs for test / analysis and they
can also prosecute firms for manufacture/ sale of sub-standard drugs.
! !299
5.2 THE PHARMACY ACT OF 1948:
• The Pharmacy Act was passed in 1948 and was amended in 1959, 1979
and 1984.
• The aim of this law is to regulate the profession of pharmacy in India.
5.2.1. Central Pharmacy Council:
Under the provisions of this act, the Central government constitutes a

Central Pharmacy Council of India consisting of following members:
a. Six members from the list of the teaching faculty of Pharmacy course.
b. Six members from practicing pharmacy or working as pharmaceutical

chemists and holding a degree or diploma.
c. One member elected by the Medical Council of India.
d. The Director General of Health Services.
e. The Director of the Central Drugs Laboratory.
f. The Chief Chemist, Central Revenues.
g. One member to represent each State elected members of state councils

who shall be a registered pharmacist.
h. One member to represent each State Government who shall be either

registered medical practitioner or a registered pharmacist.
• Important activities of the Central Council of pharmacy , appointed by

the central government includes
A. To regulate & prescribe the minimum standard of education required for

qualification as a pharmacist
B. To regulate prescribe the nature and period of study of pharmacy, both

degree in pharmacy and diploma in pharmacy , both at undergraduate
and post graduate level
! !300
C. It is also concerned with the practical training to be undertaken before

admission to an examination, equipment and facilities to be provided for
students, the subjects of examination and any other conditions for
admission to examination
• The role of the Executive Committee of central council of pharmacy who

appoints drug Inspectors
A. to Inspect any institution whose authorities have applied for the

approval of its course of study or examination i.e. Applied for the
recognition of the course at undergraduate and post graduate level from
the pharmacy council of India
B. The inspectors report to the Executive Committee about their findings

on the sufficiency of every examination and other matters
C. Their findings or observation forms the basis for the recognition of the
institute, for conducting pharmacy courses.
5.2.2. State Pharmacy Councils:
• The Act makes it incumbent upon the State Government to constitute,

State pharmacy Councils with the following members :
a. Six members elected from among themselves by registered pharmacists

of the State.
b. Five members of whom at least two shall be persons possessing a

prescribed degree or diploma in Pharmacy or Pharmaceutical Chemistry
or members of the Pharmaceutical Profession nominated by the State
Government.
c. One member elected by the Sate Medical Council.
d. The Chief Administrative Medical Officer of the State.
e. The State Drug Controller.
f. The Government Analyst.
! !301
• Two or more State Government can enter into an agreement for

constitution of Joint State Councils or the Council of one State can serve
the needs of the other.
5.2.2.1. Registration of Pharmacists:
The State Government has under the provisions of the Pharmacy Act
prepares the a register of the State Pharmacists .The State Pharmacy
Council has to maintain the register of the pharmacists registered in the
particular state. This register shall contain
A. The name and residential address of pharmacist
B. The date of his first admission to the register after obtaining the
qualifications for registration
C. Address, the name of his employer
• The name of pharmacist can be removed from the register if the

Registrar is satisfied that
i. The name has been entered by error or on account of misrepresentation

or suppression of a material fact- pharmacist not done the recognized
course in the pharmacy
ii. The pharmacist has been convicted of any offense or quality of any
infamous conduct- related to sale and promotion of the spurious
medicines
iii. The pharmacist employed a person for the purpose of his business of a
pharmacy who has been convicted of an offense of has been guilty of
any infamous conduct - pharmacist lost his job from his present
employer due to an inquiry of fraud in sale of the medicine and now he
is selling his registration or giving his registration number to open a
pharmacy shop by unqualified person, for business purposes.
! !302
5.2.2.2. Penalty for False Claims:
The action taken by state pharmacy council, when person falsely claims to
be a registered pharmacist and falsely register his name in the state
pharmacy register is all expect
A. He may liable to conviction
B. Fine up to 500 rupees, can be imposed on him
C. On any subsequent conviction for such offense he may be imprisoned up

to six months and also fined
5.3 THE DRUGS AND MAGIC REMEDIES (OBJECTIONABLE

ADVERTISEMENT) ACT OF 1954:
The Drugs and Magic Remedies Act prohibits a person from taking part in
the publication of any advertisement referring to any drug which suggests
the use of the drug for (a) the procurement of miscarriage in women or
prevention of conception in women- i.e. involved with the illegal abortions
and (b) the maintenance or improvement of the capacity of the human
being for sexual pleasure for example promotion of aphrodisiac drug; (c)
the correction of menstrual disorder in women and promoting child birth
and pregnancy (d) the diagnosis, cure, mitigation, treatment or prevention
of any general disease.
Whoever contravenes the provisions of this Act shall, on conviction be

punishable with imprisonment which may extend to six months, with or
without fine. In case of subsequent convictions the imprisonment can be
extended to one year.
! !303
5.4 THE POISONS ACT OF 1919:
• The object of this Act is to console the laws regulating the importation,
possession, and sale of poisons.
• The Government can also fix fees for such license and decide about the
class of persons to whom the license may be granted, the class of
persons to whom alone the poison may be sold, the maximum quantity
which may be sold, the registers that vendor should maintain, the way
the poisons are to be kept in custody and the method of inspection of the
poison.
• Importation of Poison without a payment is prohibited.
• According to the poisons act of 1919the following substances are deemed

to be poisonous
Aconite, Aconine, Alkaloids, Arsenic, Atropine, Belladonna, Pantharidin

Chloral Hydrate, Coca, Corrosive Sublimate, Cyanide of Potassium,
Diamorphine (also known as Heroin), Diethyl Barbituric Acid, Digitalis
Digitalin, Econonine, Ergot or Rye, Lead, Nux Vomica, Arychnine Morphine,
Pictrotoxin, Purssic Acid, Savin and its olis, tramonium, Strophanthus,
Strophanthin, Tartar Emetic, Tetraethyl Lead.
5.5 LEGISLATION FOR TOBACCO CONTROL:
• Laws generally reflect societal attitudes. Therefore, legislative action for

tobacco control would suggest societal acceptance of the need to
promote positive health. Behavior change among addicts is a difficult
process and quite often disincentives for a majority of tobacco users as
well as discourages starters.
• In India, Cigarette (Regulation of Production, Supply and Distribution)

Act, 1975 made it mandatory for all manufactures or person trading in
cigarettes to display a statutory warning "Cigarette smoking is injurious
to heath" on all cartoons or packets of cigarettes and cigarette
advertisement.
• The limitations of the current warning labels need improvements in the

areas of scope, languages, rotation of message, color, size and position,
! !304
pictogram, visibility and legibility. Since there was neither proper

implementation nor monitoring of the regulations on warning nor any
actions taken on the defaulters, the Cigarette Act and the Rules need to
be enforces seriously. Even though beedi manufacture is a cottage
industry, the small number of industries which make beedis can easily be
brought under the legislation.
• Recently, the scope of the Prevention of Food Adulteration Act has been
expanded to cover chewing tobacco, pan masala and supari. These
products need to bear the statutory warning that "Chewing of tobacco is
injurious to health", "Chewing of pan masala may be injurious to health",
on all respective packages. The rules apply to advertisements also. Now
days it is also compulsory even in Indian movies, not to show any scene
of cigarette smoking.
• The growing need to control the tobacco epidemic was considered by the
Committee of Secretaries in 1986. A draft comprehensive legislation was
subsequently initiated by the Ministry of Health and Family Welfare, after
getting the empowerment of the Parliament by three states (which is a
constitutional necessity). If envisages strict measures, on several fronts,
to control tobacco use.
• While the work on the comprehensive legislation was on, an

administrative order prohibiting smoking in selected public places like
hospitals, dispensaries, education institutions, conference rooms,
domestic air flights, air conditioner coaches in trains, suburban trains and
air-conditioned buses, was issued in 1990.
• While the prohibition was successful in certain areas like domestic air
flights, implementation of the order in other areas is extremely limited.
In 1995, the issue of rules and regulations framed under the Cigarette
Act was considered by a Parliamentary Committee on Subordinate
Legislation, chaired by Sh. Amal Datta, MP. After consulting evidences
provided by various government officials, persons concerned with
tobacco promotion and anti-various suggestions for control of tobacco.
• But the latest development is not very encouraging as the Advertisement

Standards Council of India (ASCI) has withdrawn in 1998 its advertising
code formulated for the tobacco industry due to the inability of prominent
members of the tobacco industry to follow the code.
! !305
• The ASCI code for tobacco advertising had banned any testimonial or
recommendation by a well known personality. (Many tobacco majors had
been using endorsements from cricketers and film personalities either
indirectly or directly). Further, the ASCI code said that the
advertisements should not imply that smoking was associated with
success in sports or in any sphere of life. Surrogate advertising was also
not allowed. The tobacco code spanned the entire gamut of beedis,
cigars, guthka etc. and covered all mediums of advertising, including
outdoor. Tobacco Institute of India, New Delhi has informed ASCI that it
had developed its own code on advertising and marketing and would
prefer to follow it instead.
5.6 THE NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985:
• This is an Act to consolidate and amend the law relating to Narcotic

Drugs, to make stringent provisions for the control and regulation of
operations relating to Narcotic Drugs and Psychotropic Substances and
for matters concerned therewith.
The Narcotic Drugs and Psychotropic Substances Act, 1985 provides

deterrent punishment for those who contravened the provisions of the
Act by engaging themselves in manufacture, sale, purchase, transport
etc. of narcotic drugs and psychotropic substances like Coca, Opium,
Cannabis and Psychotropic substances. The punishment provided is
rigorous imprisonment for a term which shall not be less than 10 years
but which may extend to 20 years and shall also be liable to fine which
shall not be less than 1 lakh rupees but which may extend to 2 lakh
rupees, where a contravention relates to 'ganja' or the cultivation of
cannabis plant, the punishment prescribed is rigorous imprisonment for a
term which may extend to 5 years and shall also be liable to fine which
may extend to fifty thousand rupees, where contraventions relates to
Cannabis other than ganja, the punishment is rigorous imprisonment for
ten years, but which may extend to twenty years and fine up to 1 lakh
rupees which may extend to 2 lakh rupees. In case of repeat offence, the
Act provides for every subsequent offence, rigorous imprisonment for a
term which shall not be less than 15 years but which may extend to 30
years and shall also be liable to fine which shall not be less than 1 lakh
50 thousand rupees, but which extend to 3 lakh rupees.
! !306
Summary:
Laws pertaining to Manufacture And Sale Of Drugs - There are

several Acts relating to manufacture and sale of drugs in India. Among
them the following laws operate at present in the country : The Drugs and
Cosmetics Act of 1940, The Pharmacy Act of 1948, The Drugs and Magic
Remedies (Objectionable Advertisement) Act of 1954,The Narcotic Drugs
and Psychotropic Substances Act, 1985 ,The Poisons Act of 1919.
The drugs and cosmetics act of 1940 -The object of the Act is to
regulate the import, manufacture, distribution and sale of drugs.
Under the provisions of this Act, the Central Government appoints the
Drugs Technical Advisory Board to advise the Central Government and the
State Government on technical matters arising out of the administration of
this Act. The Central Government has been given powers to import and
manufacture for sale or distribution of such drugs which are therapeutically
irrational or which involve risk to human beings or animals. The Drug and
Cosmetics Act has been amended in 1945, 1964, 1972, 1982 and 1986.
The comprehensive amendments to the Act were made in 1964 and 1982.
The pharmacy act of 1948 : The Pharmacy Act was passed in 1948 and
was amended in 1959, 1979 and 1984. The aim of this law is to regulate
the profession of pharmacy in India. With the approval of the Central
Government, Central Council regulations prescribes the minimum standard
of education required for qualification as a pharmacist. Two or more State
Government can enter into an agreement for constitution of Joint State
Councils or the Council of one State can serve the needs of the other.
The State Government has under the provisions of the Pharmacy Act to get
a register of the State Pharmacists prepared and it is the State Pharmacy
Council which has to maintain the register. If any person falsely claims to
be a registered pharmacist and uses such words with his name as to
suggest that his name is so entered he makes himself liable to conviction
and fine upto 500 rupees and on any subsequent conviction for such
offence he may be imprisoned upto six months and also fined.
! !307
The drugs and magic remedies (objectionable advertisement) act

of 1954 : The Drugs and Magic Remedies Act prohibits a person from
taking part in the publication of any advertisement referring to any drug
which suggests the use of the drug for (a) the procurement of miscarriage
in women or prevention of conception in women and (b) the maintenance
or improvement of the capacity of the human being for sexual pleasure; (c)
the correction of menstrual disorder in women (d) the diagnosis, cure,
mitigation, treatment or prevention of any general disease.
The poisons act of 1919 : The object of this Act is to consoled the laws
regulating the importation, possession, and sale of poisons.
Legislation for tobacco control : Recently, the scope of the Prevention

of Food Adulteration Act has been expanded to cover chewing tobacco, pan
masala and supari. These products need to bear the statutory warning that
"Chewing of tobacco is injurious to health", "Chewing of pan masala may
be injurious to health", on all respective packages. The rules apply to
advertisements also.
The Narcotic Drugs And Psychotropic Substances Act, 1985 : The

Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent
punishment for those who contravened the provisions of the Act by
engaging themselves in manufacture, sale, purchase, transport etc. of
narcotic drugs and psychotropic substances like Coca, Opium, Cannabis
and Psychotropic substances.
! !308
Review Questions:
1. What are the laws pertaining to health? Describe main features of Drugs
and Cosmetic Act ,1940?
2. What are the recent amendments in Drug and Cosmetic Act?
3. What is the procedure for registration of pharmacist?
4. What are the important features of legislation for tobacco control?
! !309
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
Video Lecture
! !310
LABOUR LAWS APPLICABLE TO HEALTH CARE INSTITUTIONS - PART 'A'
Chapter 6
Labour Laws applicable to health care
institutions - Part ‘A'
6.0 Labour Laws applicable to health care institutions - Part 'A'
6.1 Industrial employment ( Standing order ) ACT, 1946

6.1.1 Introduction
6.1.2 The expression "Standing Order"
6.1.3 Schedule
6.1.4 Acts and commission on the part of the workman
6.1.5 Domestic enquiry
6.2 Shops and establishment Act , 1954

6.2.1 Definition
6.2.2 Cleanliness, Lighting and Ventilation, Drinking Water etc
6.2.3 Employer to furnish Letter of Appointment to Employees
(Section 34)
6.3 Employees State Insurance ,1948

6.3.1 Definition
6.3.2 Benefits
6.3.3 Benefit to employees, covered in ESIS Act
6.4 Employee's Provident fund Act, 1952

6.4.1 Definition
6.4.2 Schemes under the act
6.4.3 Employees' Provident Fund Scheme
6.4.4 Employees' pension scheme
6.4.5 Employees' Deposit-Linked Insurance Scheme
6.5 Payment of gratuity Act ,1972

6.5.1 Definition
6.5.2 Payment And Forfeiture Of Gratuity And Exemption
6.5.3 Compulsory Insurance And Protection Of Gratuity
6.5.4 Nomination
6.5.5 Employer's Duty of Determine about the Payment of Gratuity
! !311
6.6 Maternity benefit Act, 1961

6.6.1 Definition
6.6.2 Employment of, or work by women, prohibited during certain
periods (Sec. 4)
6.6.3 Interval Period
6.6.4 Maternity Benefit
6.6.5 Conditions for Payment of Maternity Benefit
6.6.6 Notice of claim for maternity benefit and payment thereof (Sec.
6)
! !312
6.0 LABOUR LAWS APPLICABLE TO HOSPITALS - I
Hospital as an organization is most complex to handle and manage. The

intensity of this aspect has been increased because of dealing with
qualified personnel's such as specialty and super-specialty doctors, semi
skilled - such as nurses and paramedical staffs such as audiologist, cath lab
technicians, lab technicians, refractionist, dental hygienist, physiotherapist
etc and non-qualified such as ward boys, ward ayah bai etc or skilled but
non medical personnels such as charted accountant, marketing
professional, human resources personnel's, health economists, semi
skilled- electricians, MRD technicians, CSSD personnel's, etc and unskilled
personnel such peons, watch, lift operators, gardeners etc. This task has
become more delicate, because of one has to keep a pace with existing
labor laws and human issues while dealing with all these different
personnel in day to day functioning of the hospitals. Some of these Acts,
related to labor issues in a hospital set up are:
1. Industrial Employment (Standing Orders) Act, 1946

2. Shops and Establishment Act, 1954
3. Employees' State Insurance Act, 1948
4. Employees' Provident Fund Act, 1952
5. Payment Gratuity Act, 1972
6. Maternity Benefit Act, 1961
7. Minimum Wages Act, 1948
8. Payment of Wages Act, 1936
9. Payment of Bonus Act, 1965
10.Factories Act, 1948
11.Workers Compensation Act, 1923
12.Trade Union Act, 1926
13.Industrial Disputes Act, 1947
 
! !313
6.1 INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT,

1946
Structure
Introduction
Schedule 1
Domestic Enquiry
Principles of Natural Justice
6.1.1. Introduction:
• The conditions of service are not uniform in many industrial

establishments and sometimes they are not reduced in writing. The main
aim industrial employment (standing order) act, also applicable in
hospital industry is
a. Reduce conflicts resulting in unnecessary industrial disputes

b. For achieving industrial harmony
c. For achieving industrial peace
• It is a beneficent to define with sufficient precision, the conditions of

employment of workmen employed under them and to make known to
such workmen. Now days hospital is also considered as service industry
and the service, it renders are related patient care, both the treatment of
patient in acute emergency conditions and patient with chronic diseases,
treatment is given in OPD basis and follow up. It provides this complex
service by collective team work of skilled, semi-skilled and un-skilled
workers.
• The Act applied to every establishment - such as hospital & nursing

homes wherein 100 or more workmen are employed on any day of the
preceding 12 months i.e. from small nursing homes to big corporate and
multispecialty government run or privately owned and trust supported
hospital.
! !314
6.1.2. The expression "Standing Order" in Industrial employment

(standing orders) act 1946 means rules relating to matters set in the
different Schedules of the Act. The Schedule sets out different model
Standing Orders among others (A) For workmen doing manual or technical
work i.e. medical and paramedical staffs , including nurses (B) For
workmen employed to do clerical or supervisory work and doing unskilled
work.
• Terms of employment mentioned in the standing orders prevail over the

terms of individual agreement and in case of conflict between the
Standing Orders and terms of contract, former shall prevail. Standing
Orders are binding on all the workers working in an industrial set up -
hospital & health care organization.
• The Industrial Employment (Standing Orders) Act, 1946 is applicable

to every establishment wherein 100 or more workmen are employed on
any day preceding 12 months. Once the Act is made applicable to an
industrial establishment such as hospital & health sector, subsequent
reduction in number of workmen will not make that Act inapplicable.
There is nothing in the Act providing for cessation or discontinuance of
application of the Act to an establishment on account of fall in number of
workmen or any other account. Standing Orders framed in an industrial
establishment do not cease to be operative on purchase of the
undertaking by another employer, for example hiranandani hospital,
located in Vashi area of Navi Mumbai taken over by Fortis group and now
is known as Fortis hiranadani hospital.
• The schedule to The Industrial Employment (Standing Orders) Act, 1946

is referred to enumerated matters to be provided in
A. Standing Orders
B. Model Standing Orders
C. Amendments.
• The said matters relate to service conditions and include among others,
classification of workmen into permanent, temporary etc. shift working,
attendance, late coming, closing and reopening of sections such as bill
passing sections, cash sections etc and of entire establishment and
temporary stoppages thereof and the rights and liabilities of the
! !315
employers and workmen, disciplinary proceedings, retirement and

superannuation.
• Within a period of six months from the date on which the Model standing
Orders apply to any industrial establishment - such as in the corporate
hospital under the Act, the employer or any workmen employed therein
may submit to the Certifying officer five copies of the draft amendments
for adoption in the establishment. For example a new corporate hospital
is established in Thane district of Mumbai. Trade union of this particular
hospital agreed to the different clauses mentioned in The Industrial
Employment (Standing Orders) Act, 1946. The minimum time period,
with in which these standing orders will become applicable in such
particular hospital is, with in 6 months from date, the order is passed.
• On receipt of the draft under section 3, the Certifying Officer shall

forward a copy to the Trade Union, if any, or the workmen together with
a form of notice requiring objections, and which should be submitted
within 15 days.
• After giving the employer and the representatives of the workmen

opportunity to be heard the Certifying Officer shall decide whether or not
any modification is necessary and shall make an Order in writing. The
Certifying Officer shall thereupon after making modifications within 7
days send copies to both the parties i.e. Hospital management and its
labor unions.
• If any trade union in a government run hospital wants to protest against,

any clause mentioned in the standing order, then they have to file an
appeal to the Appellate Authority, with in 30 Days, whose decision will be
final.
• The Standing Orders shall come into operation on the expiry of 30 days
from the dispatch of the authentic copies, and where an appeal is
preferred within 7 days of the date on which copies are sent. The copy of
all the Standing Orders as finally certified under the Act shall be filed by
the Certifying Officer in a register and a copy of the Standing Order shall
be made available after payment of prescribed fee.
• The certified Standing Orders shall be pasted by the employer on the

Notice Board preferably at the entrance of the establishment and all
! !316
departments. The duration of the Standing Orders is one year.

Under Section 10-A of The Industrial Employment (Standing Orders) Act,
1946, where a workman - such as the hospital pharmacists suspended by
the employer like hospital management committee, and the pending
inquiry set up with the charges of misconduct, the employer shall pay
Subsistence Allowance at the rate of 50% of the wages for the first 90
days, 75% for the remaining period, any dispute pertaining to payment
of Subsistence Allowance can be raised before the Labor Court. Any
dispute relating to interpretation of Standing Order shall be referred toe
Labor Court - Ramkumar Singh V/s Tannery& Footwear Corporation 1979
(34) FLRI. The Government has power to exempt the establishments
conditionally or unconditionally.
6.1.3. Schedule 1:
• These standing orders apply to all workmen employed in the

establishment doing manual or technical work.
• These workmen shall be classified as
1. Permanent workmen, Probationers, badlis or substitutes, Temporaries or

casual workman, apprentices.
2. Every probationer who has completed the period of three months of

uninterrupted service in the post in which he is provisionally shall be
made permanent in the post by the order in writing within 7 days from
the date of completion of service.
3. Wherever badli system is prevalent the Manger shall maintain a register

of badlis shift wise with the following particulars.
4. The names and addresses, the nature of the work and the nature of
their occupation in which they are employed the shit in which they are
working while in employment the wages paid to them during
employment and the dates of termination of their services.
5. The names of badlis who are found to be irregular in attendance or

inefficient in work may be removed from such register after giving them
sufficient opportunity to improve.
! !317
6. All temporary vacancies of permanent workman shall be filled up

appointing their badlis whose names are entered in the register
maintained.
7. After filling up any of the permanent vacancies in any class the badlis
who have worked in that class of occupation shall be given preference
wherever they are employed.
8. All badlis who have put in 190 days of uninterrupted service in a

seasonal establishment, and the services of whom have been
terminated on account of the completion of the work, should be given
preference
9. Whenever the vacancies are to be filled the names of the persons on the
waiting list are to be considered.
10.No person whose name is not entered in the waiting list shall be given
preference unless his or her name is entered in the waiting list.
11.Every class of workman shall be given his ticket number and the name
of the department and his name.
12.Notices displaying the periods and hours of work and shifts shall be
displayed on the notice boards of the different departments and notices
specifying the weekly off and weekly holidays, dates of the
compensatory holidays, the days of the wages, the rates of the wages
and allowance payable if any shall also be displayed.
13.Where there are more than one shifts working in the department then
the services are liable to be shifted from one shift to the other.
14.When there is any alteration of discontinuance of any shift then a notice

of 7 days is to be given.
15.When there is discontinuance of any shift then one months notice has to
be given to the permanent employees as well as the principle of last
come first go has to be adopted.
16.On the restart of any shift the employer has to give a notice in the
newspaper having large circulation so that the workmen at large come
! !318
to know of the said intention of the employer. Preference of the

employees who have rendered more number of years should be given.
17.According to Industrial Employment (Standing Orders) Act, 1946, any

department in an industrial set up like in a health care organization may
be closed down after giving one month's notice to the workman.
18.The grant of leave is the sole discretion of the employer taking into
consideration the exigencies of work in the establishment.
19.A workman desirous of proceeding on leave shall make an application to

the employer in writing and obtain necessary permission for the leave.
The employer may grant or refuse the leave as the case may be and
may record the said in the register maintained for the said purpose. In
case the employee can intimate to him in writing at the address given.
20.According to Industrial Employment (Standing Orders) Act, 1946, An

employee remaining absent for a period more than that of his leave
then there is a possibility of he losing his lien of appointment unless he
returns back within a period of 8 days.
21.However an employee who returns back after he loses his lien of

appointment shall be appointed as badlis if he returns back after a
period of 15 days.
22.Every employee is entitled to casual leave however this leave shall be

limited to three days at a time and casual leave is intended to meet the
special or unforeseen circumstances for which provision can not be
made by exact rules.
23.No workman shall enter or leave the premises of the establishment

except by the gates or gate appointed for the purpose.
24.A female worker may be detained by the gatekeeper appointed by the

employer in case of suspect of some wrongful possession of property
and may be searched by a female searcher. But the search shall be done
in the presence of two witnesses and not in the presence of the male
persons except with her consent.
! !319
25.In case of stoppage of work the employees shall be intimated

immediately about the same.
26.All notices given under the Standing Orders shall be displayed in writing
and particularly on the notice board.
27.In case of a strike affecting the whole or part of the establishment or

the department of the establishment, the employer may choose to close
down the whole or part of the department. The said closure may be
intimated by the employer in writing or displayed in the department on
the notice board.
28.Under Sec. 23 of the standing orders, the permanent employees may

be terminated by giving them 14 days notice or by giving them 13 days
wages including all admissible allowances in lieu of notice. Further if the
permanent employee desirous of leaving service may give 14 days
notice to the employer. The employment of a permanent workman
employed on the monthly rates of wages may be terminated by giving
him one month notice or on payment of one month wages in lieu of
notice. The reason for termination may be recorded in writing and
communicated to him at the time of discharge.
29.If the permanent workman leaves the service without giving notice no
deduction on that account shall be made from his wages.
30.All the other employees other than the permanent employees shall be
terminated on the basis of their leave without one months notice.
31.An order of termination of service shall be in writing and shall be signed

by the manager concerned and a copy shall be supplied to the workman
concerned, in cases of general retrenchment and closing down of
departments or termination of services as a result of strike no such
order shall be given,.
! !320
6.1.4. The following acts and commission on the part of the

workman shall amount to misconduct in a hospital and health care
industry
a. Willful insubordination or disobedience whether or not in combination

with another or any lawful and reasonable order of the superior , like
staff nurses not following the order issued by medical superintend
knowingly .
b. Going on an illegal strike or abetting, inciting, instigating or acting in

furtherance thereof like flash strike against the action taken by all
nurses against suspension order of one of its colleague due to
disciplinary protocols not followed by her.
c. Willful slowing down in performance of work or abutment or instigation

thereof, like junior residents not turning up for the rounds and coming
late to start hospital round.
d. Theft, fraud or dishonesty in connection with the employers business or

property of the theft or property of another workmen within premises of
the establishment like episode of illegal theft of the hospital syringes
and needles
e. Taking or giving bribes or any illegal gratification like doctors accepting

gift from the pharma company, by giving them favor.
f. Habitual absence without leave of absence for the period of more than
10 days or overstaying the sanctioned leave without the permission of
the employer, and also for not proper and sufficient grounds.
g. Late attendance on not less than 4 occasions within a month.
h. Habitual breach of any standing order or any law applicable to the

establishment or the rules made there under, like always not taking
consent of surgical patient, before shifting the patients in O.T.
i. Engaging in trade within the premises of the establishment like doctor

manufacturing and selling their own company medicines, while on duty.
! !321
j. Collection without the permission of the manager of any money within

the premises of the establishment except as sanctioned by any law in
force, likes a government doctor taking money from patients for doing
operations.
k. Drunkenness, riotous, disorderly or indecent behavior on the premises

of the establishment like doctor under the effect of alcohol while doing
''ON CALL DUTY''.
l. Habitual neglect of work, or gross or habitual negligence, like medical

student not attending practicals on regular basis.
m. Habitual breach of any rules of instruction for the maintenance and

running of any department or the maintenance of the cleanliness of any
portion of the establishment like ward boy not cleaning the patients
urinal pots on regular basis.
n. Habitual commission of any act or omission for which a fine may be

imposed like a medical student studying in a medical college and not
paying college tuition fees on regular basis .
o. Canvassing for union membership or the membership or the collection

of union dues within the premises of the establishment except in
accordance with any law or with the permission of the manager like
resident doctor's association forcing the junior resident doctors to
become the member and pay towards the membership fees .
p. Will full damage to work in process or to any property of the

establishment like medical student stealing the medical books from the
college library.
q. Holding meeting inside the premises of the establishment without the

previous permission of the manger or except in accordance with the
provisions of any law for the time being in force like class 4 employees
illegally using the hospital premise to stage 'DHARNA' in order to
support a particular political party.
r. Disclosing to any unauthorized person any information in regard to the

processes of the establishment which may come into the possession of
the workman in the course of his work like disclosing the HIV+ status of
! !322
the admitted patient, to his friends by hospital staff nurses is ethically

not permissible.
s. Gambling within the premises of the establishment like playing juaa in

the hospital campus by class 4 employees in the night duty.
t. Smoking or spitting on the premises of the establishment where it is

prohibited by the employer like a senior consultant found smoking in the
hospital operation theater.
u. Failure to observe safety instructions notified by the employer or

interference with the safety service or equipment installed in the
establishment, like ward boy entering ICCU in his own slipper and with
out wearing mask and head cap.
v. Distributing or exhibiting within the premises of the establishment hand

bills pamphlets posters and other thing cause in to be displayed by
means of signs or writing or other visible representation on any matter
without previous sanction like a doctor openly distributing his nursing
home address and facilities available in his nursing home and his private
practices visiting card, while on duty.
w. Refusal to accept a charge sheet order or other communication served

in accordance with these standing orders like professor of a medical
college not accepting his suspension order issued by hospital
management committee.
x. Unauthorized possession of any lethal weapon in the establishment like

admitted patient found with country made pistol.
• No act which is committed on less than three occasions within a space

of one year shall be treated as habitual.
• Under standing order No. 25 a workman guilty of misconduct may be

warned of censured or fined subject to any in accordance with the
provisions of the payment of wages Act 1936 suspended by an order in
writing signed by the manager for a period not exceeding 4 days,
dismissed without notice.
! !323
• No order of dismissal shall be passed unless an inquiry is held into the

charges leveled against the workman.
• A workman against whom the inquiry is proposed to be held shall be
1. Given a charge sheet clearly setting the circumstances appearing

against him and requiring his explanation.
2. He shall be permitted to appear in person or through a workman

working in the same department or through an office bearer of the trade
union of which he is a member.
3. Except for the reasons recorded in writing the workman shall produce
witness in his defense and cross examine any witness on whose
evidence the charges rests.
4. A concise summary of the evidence led on either side or the workman's

pleas shall be recorded.
• All proceedings of the inquiry shall be conducted in English, Hindi or

Marathi or according to the choice of the workman i.e. any local language
as per the choice of the workman.
• According to Industrial Employment (Standing Orders) Act, 1946, All

disciplinary inquiry related to the professional misconduct shall be
completed within a period of 3 months and for reasons recorded in
writing may be extended to such further period as may be deemed
necessary by the inquiry officer.
• According to Industrial Employment (Standing Orders) Act, 1946, the

workman against whom the action or the inquiry is being conducted may
be suspended pending inquiry. The workman who is suspended shall be
paid subsequent allowance at the following rates:
A. For the first ninety days of the period of suspension the subsistence
allowance shall be paid at 50% of the total wages i.e. half of the
wages drawn per month (basic wages + dearness allowance + other
compensatory allowance).
! !324
B. If the inquiry gets prolonged the workman continues to be under

suspension for a period exceeding ninety days the subsistence
allowance is 75% of the total wages.
C. Further if the inquiry exceeds beyond a period of 180 days then the
suspended employee gets 100% wages. However if the findings of the
inquiry officer show that the workman has been directly liable for the
delay then the subsequent allowance may be reduced to half of the
rate.
• The payment of subsequent allowance shall be subject to the workman

taking up employment during the period of suspension.
• The punishment shall be awarded taking into account the gravity of the
misconduct and the previous record, i.e repetition of offense again and
again like unauthorized absenteeism, negligence on duty by ward staff
nurses again and again.
• In case the employee refuses to take the charge sheet the same may
be served upon the employee as per the charges sheet in the presence
of two witnesses and if the employee further remains absent in the
inquiry then the inquiry may precede expertise.
A workman may be warned, censured or fined for any of the following acts
and omissions:
a. Absence without leave without sufficient cause like the case of chronic
absent ism on medical ground by hospital ward boy, beyond his
sanctioned leave.
b. Negligence in performing duties. Like ward doctor not performing night

duties and not following the instructions of the consultants.
c. Late attendance like nurse reportedly coming for duties late for her
night shift.
d. Neglect of work like junior resident neglecting the importance of filling

blood requisition forms, especially in the cases of road side traffic
accidents.
! !325
e. Absence without leave or without sufficient cause from the appointed

place of work like female physiotherapist not resuming her duty after
approved or sanctioned maternity leave.
f. Entering or leaving or attempting to leave the premises of the

establishment except by a gate or entrance appointed like ward boy
trying to enter the hospital premises from emergency entrance gate.
g. Committing nuisance on the premises of the establishment like relatives

of the admitted patient creating nuisance over the payment of the
hospital bills at the time of discharge.
h. Breach of any rule of instruction for maintenance or running of any

department. Like hospital not carrying out mandatory fire control
measures in the hospital premises.
• The normal age for retirement shall be 60 years unless it has been
expressly agreed upon by the parties by a settlement or agreement
that the age of retirement shall be different and this shall be binding
on the parties. But government of Maharashtra has made mandatory
retirement age, including government hospital employee at age of 58
years.
• Every employee who leaves service retires or is dismissed, discharged

shall without avoidable delay by given a service certificate if he asks
for one, which will serve the purpose of work experience certificate for
their future assignment.
• Case Law :
A controversy regarding the interpretation of the standing orders, model

standing orders can be decided by the Labor Court like the office of chief
labor commissioner.
Ramkumar Singh V. Tannary and Footwear Corporation 1 1979 (34) FLR 1
! !326
6.1.5. Domestic Inquiry:
No employer can punish his employee without holding inquiry into the acts
of misconduct committed by him. The principle involved is that nobody
should be punished unheard. Domestic the following facts about domestic
inquiry, set up in a hospital premise are
A. It is the process of investigating facts
B. to establish whether an act of misconduct has really been committed
C. And whether the misconduct was committed by same person, who is

suspected of committing crime.
D. Like internal hospital inquiry about theft conducted in the hospital

wards by ward boy by hospital medical superintendent.
The Inquiry in a Nutshell (sequence & Stage):
1. Misconduct committed, i.e. allegation raised against the particular

hospital employee
2. Complaint of report i.e. in writing , the complaint was made in writing
3. Preliminary inquiry (if not necessary, may be dropped). I.e. initial stage
of investigating theft in hospital ICCU.
4. Framing and issuing charge-sheet.i.e written order of issuing

disciplinary action by hospital management against fraud framed against
hospital pharmacist
5. Serving the charge sheet.i.e. Handing over the dismissal order to culprit
hospital cath lab technician.
6. Considering workers reply - i.e. reply or response from suspended or

dismissed hospital employee.
7. Appointing inquiry officer - who can hear the stands of the both parties
to come to the legal con conclusion
! !327
8. Holding actual inquiry.
i. Recording employer's evidence

ii. Cross examination by defense
iii. Recording Evidence of defense and plea of delinquent.
iv. Cross examination by the Management.
9. Report of the inquiry officer.
10.The management must send this report to the delinquent & invite his
reply / comments.
11.Awarding punishment after hearing of the both parties are complete.
6.1.6. Principles of Natural Justice:
At every stage, the inquiry must confirm to the principle of natural justice.
Normally inquiry must be held in the presence of the delinquent and he
should be allowed to be defended by his representative so that no one can
say that inquiry officer was biased by management, and has given their
judgment under the influence of management.
Important Case Law (Valid & proper inquiry):
1. Sur enamel Stamping works V/s Workers (1963 (2) LLJ 367 S / Court)
2. Opportunity to explain (S.C. Union of India LL.J. 1958 (II) 259).
3. Fair play in Action 1984 (I) LLJ. 3-S.C. Tripathi V/s State Bank
6.2.1. THE SHOPS AND ESTABLISHMENTS ACT, 1954(i.e. nursing

homes, pharmacy shops, medical equipment shops etc)
The working conditions of the employees in shops and commercial

establishment in India are governed largely by Acts passed by the different
State Governments for the respective areas under their jurisdiction and the
Rules framed by each State under those Acts. These Acts regulate the daily
and weekly hours of work i.e. working hours of pharmacist employed in a
pharmacy shops, rest intervals i.e. No of the breaks given to the employee
in between the working hours , lunch break etc , opening and closing hours
! !328
of establishments i.e. Time of the opening and the closure of the medical
shops, payments of wages i.e. their salary, incentives, paid day weekly off,
festival advances, overtime pay i.e. Payment beyond working hours,
holidays with pay, annual leave, employment of females with special
attention to the maternity leaves, break for breast feeding , MTP leave etc,
children- do not allow minors involved with the hazardous type of work and
young persons etc. These Acts apply in the first instance to shops -
pharmacy shops, medical equipment s shops, commercial establishments -
private nursing homes, pathological laboratories, restaurants, hotels and
places of amusements in certain notified areas. The State Governments
have the power to extend the application of such Acts to such other areas
or to such other categories of undertakings in such areas as they may
consider necessary.
The main provisions of the Act relate to:
i. The regulation of hours of work - working schedule pattern for the

hospital staff working in general shift pattern and the hospital staffs
working in the 24 hours shift pattern
ii. Payment of wages - daily wage workers, on fixed term contract worker,
and permanent staffs
iii. Leave and holidays- weekly off , 5-days work pattern, 24 hours work
pattern, with off on national holiday , weekly off on Sundays etc
iv. Terms of service and other conditions of work of person employed in

shops, commercial establishments, establishments for public
entertainment or amusement and other establishments- their career
progression, annual increments, post retirements benefits, special
compensatory allowances, Non- practicing allowances for medical staffs
etc.
v. Employment of children and young person like hospital is a complex and

hazardous place and employment of the children below 14 years of age
especially for house keeping, collection and the disposal of the Bio-
medical waste, in hospital laboratory, hospital pantry should be
discouraged.
! !329
6.2.2. DEFINITIONS:
Adult [Sec.2 (10]: It means a person who has completed his eighteenth
year of age.
Close day [Sec.2(3)]: It means the day of the week on which a shop or
commercial establishment remains closed which may be Friday evening for
5 days working pattern staffs and Saturday evening for six day pattern
staffs.
Closing hour [Sec.2(4)]: It means the hour at which a shop or

commercial establishment closes, which may be 8.30 pm or 9.30 pm for
commercial establishments, but medical shops and nursing homes
rendered 24 hours service .
Commercial Establishment [Sec.2 (5)]: It means any premises wherein

any trade, business or profession or any work in connection with, or
incidental or ancillary thereto, it carried on. It includes a society registered
under the Societies Registration Act, 1860 and Charitable or other Trust,
whether registered or not, which carries on any business, trade or
profession or work in connection with or incidental or ancillary thereto,
journalistic and printing establishments, hospital services - such charitable
hospitals and nursing homes, contractor and auditors' establishments,
quarries and mines not institutions run for private gain and premises in
which business of banking, insurance, stocks and shares, brokerage or
produce exchange is carried on. It does not include a shop or a factory
registered under the Factories Act, 1948 or theaters, cinemas, restaurants,
eating houses, residential hotels, clubs or other places of public
amusement or entertainment.
Day [Sec.2 (6)]: It means a period of twenty-four hours beginning at

mid-night. But in the case of an employee whose hours of work extend
beyond mid-night, it means the period of twenty- four hours beginning
when such employment commences irrespective of mid-night. For example
the employees working in the shift in the hospital set up.
Employee [Sec.2 (7)]: It means a person wholly or principally employed,

whether directly or otherwise, and whether for wages (payable on
permanent, periodical, contract, piece-rate or commission basis) or other
consideration, about the business of an establishment. It includes an
! !330
apprentice and any person employed in a factory but not governed by the
Factories Act, 1948. It also includes a person discharged or dismissed
chose claims have not been settled in accordance with the Shops and
Establishments Act.
Employer [Sec.2(8)]: It means the owner of any establishment about

the business of which persons are employed, and where the business of
such establishment is not directly managed by the owner, it means the
manager, agent or representative of such owner who actually serves as
mediator to do the business or run business - like hospital owned by large
industrial house such as Hinduzas , Reliance group but actually run by
director, medical superintendent, dealing with the day to day management
of the hospital services.
Establishment [Sec.2(9)]: It means shop, a commercial establishment,

residential hotel, restaurant, eating house, theater or other place of public
amusement or entertainment to which Act applies and includes such other
establishment as Government may, by notification in the Official Gazette,
declare to be an establishment for the purposes of this Act.
Holiday [Sec.2 (11)]: It means a day on which an establishment is closed
and not operating and the time during which the persons employed are at
the disposal of the employer, exclusive of any interval allowed for rest and
meals.
Occupier [Sec.2 (17)]: It means a person owning or having charge or

control of the establishment and includes the manager, agent or
representative of such occupier.
Shop [Sec.2 (17)]: It means any premises where goods are sold either
by retail or wholesale or where services are rendered to customers. It
includes an office, a store-room, go down, warehouse or workhouse or
work place, whether in the same premises or otherwise, used in connection
with such trade or business but does not include a factory or commercial
establishment. Like central drug depot in the hospital premises, rendering
life saving medicines on case to case basis to the needy patients.
Wages [Sec.2 (30)]: It means wages as defined in Section 2 of the

Minimum Wages Act, 1948.
! !331
Week [Sec.2 (31)]: It means a period of seven days beginning at

midnight on Saturday.
Year [Sec. 2 (33)]: It means the calendar year.
Young Person [Sec.2 (34)]: It means a person who is not a child and
has not completed his eighteenth year of age.
A. According to the shops and establishments act, 1954, related to hospital

services, maximum hours a person can work ----- House of Work (Sec.
8):
An adult cannot be employed or allowed to work about the business of an

establishment for more than nine hours on any day or 48 hours in any
week.
The occupier must fix the daily period of work accordingly. But during any
period of stock- taking or the making of accounts or any other purpose, as
may be prescribed, an adult employee may be allowed or required to work
for may be prescribed, an adult employee may be allowed or required to
work for more than the hours fixed, but not exceeding 54 hours in any
week subject to the conditions that the aggregate hours so worked shall
not exceed 150 hours in a year. Advance intimation of at least three days
in this respect has to be given to the Chief Inspector or the chief of hospital
services. Any person employed on overtime is entitled to remuneration
calculated by the hour CHB - CLOCK HOURS BASIS. If a hospital staff is
made to work, more than 54 hours a day, then chief of the hospital or
director hospital services has to inform the employee in three Days in
advance.
B. Interval for Rest and Meals (Sec.10):

The period of work of an adult employee in an establishment each day
must be so fixed that no period of continuous work exceeds five hours i.e.
after 5 hours of the continuous work, a break of 30 minutes must be given.
Further no employee must be required or allowed to work for more than
five hours before he has had an interval for rest and meals of at least half
an hour. The time for such interval must be fixed by the employer and
intimated to the Chief Inspector a week before such fixation and must
remain operative for a period of not less than three months. If as the head
of hospital human resource department, if you are given duty to assign the
! !332
work schedule of a hospital laboratory worker, then working pattern you

will suggest is Break of 30 minutes after 5 hours of continuous work.
C. Spread over (Sec.11):

The periods of work on any day of an adult person must be so arranged
that inclusive of his interval for rest or meals, they do not spread over for
more than ten and a half hours in any commercial establishment or for
more than twelve hours in any shop. For example if the hospital pharmacy
is open for 24 hours, then maximum duty which can be assigned to
pharmacist in a pharmacy shop is 12 hours.
D. Close day (Sec.16):

Every shop and commercial establishment must remain closed on a close
day. In addition to the close day every shop and commercial establishment
has to remain closed on three of the
National Holidays each year as the Government may, by notification,
specify.
The Chief labor Commissioner of India has specified the following three to
be the national holidays, which is also applicable to the hospital and health
care organization.
1. January, 26 - Republic day

2. August, 15 - Independence Day
3. October, 2 - Gandhi Jayanthi
E. Weekly holiday (Sec.17):

Every employee must be allowed at least twenty-four consecutive hours of
rest (weekly holiday) in every week. This period can, in the case of shops
and commercial establishments required by the Act to observe a weekly
holiday, be on the close day. Only medical shops are exempted from this
due to the urgency required in order to treat the patient who require life
saving medicines.
F. Prohibition on Employment of Children (Sec. 12):

No child is allowed to work whether as an employee or otherwise any
establishment notwithstanding that such child is a member of the family of
the employers hospital is a complex and hazardous organization and child
may be exposed to physical and biological hazard such as radio logical
hospital waste, hospital OT waste, hospital laboratory waste etc. Hospital is
! !333
place for increase physical waste such as electrocution, fire out break,
building collapse etc.
G. Wages for the Holiday (Section 18):

No deduction shall be made from the wages of any employee on account of
the close day in Section 16 or a holiday granted under Section 17 of the
Act. i.e. After 6 days of work, hospital staffs will get paid weekly off.
If an employee is employed on daily wage, he shall non-the-less be paid

the daily wage for the holiday and where an employee is paid on piece
rates, he shall receive the average of the wages received during the week.
I.e. Hospital who are on daily wages, will be paid at the same rate, even
they work on their weekend or their scheduled weekly off days.
H. Terms and Conditions for Payments of Wages for the hospital

staffs (Section 19):
1. Every employer or his agent or the manager of any establishment shall

fix periods in respect of which wages to the employee shall be payable
and such person shall be responsible for the payment to persons
employed by him of all wages required to be paid under this Act.
2. No wage period so fixed, shall exceed one month.
3. The wages of every employee in any shop or establishment shall be paid

on a working day before the expiry of the seventh day of the last day of
the wage period in respect of which the wages are payable.
4. All wages shall be paid in cash but now days many organizations are
paying in exchequer or demand draft.
5. Where the employment of any person in terminated by or on behalf of

the employer, the wages earned by him shall be paid before the expiry
of the second working day after the day on which his employment is
terminated.
! !334
I. Deduction which may be made from wages (Section 20):
1. The wages of an employed person shall be paid to him without

deduction of any kind except those specified in Sub-section (2).
2. Deduction from the wages of an employee shall be of one or more of the

following kinds namely :
a. Fines
b. Deduction for absence from duty i.e. Unauthorized absent ism
c. Deductions for damage to or loss of goods or for loss of money

entrusted to the employed person and this loss due to his neglect. for
example due to negligence of ward boy, hospital A.C . Became
irreparable.
d. Deductions for house accommodation supplied by the employer i.e.

Rent free official accommodation in the hospital premises
e. Deductions for such amenities and services supplied by the employer,

such as canteen subsidy, telephone allowances, entertainment
allowances, conveyance allowances, etc.
f. Deductions for the recovery of advances like festival advance, house

building advances, and car purchase advanced, home furniture
advances etc.
g. Deductions of income tax., according to government norms and the

salary slab fixed
h. Deductions required to be made by order of the court for example in

the medical profession , it may be due to medical negligence proved
on the part of doctors in the court of law and recovery for the same to
be made from doctors salary.
i. Deductions of provident fund.-- i.e. Public provident fund, compulsory

provident fund and the voluntary provident fund
! !335
j. Deductions for insurance - health insurance, term insurance, life

insurance, vehicle insurance.
k. Other deductions includes - city compensatory allowances,

educational CESS, professional tax etc.
J. Leave (Section 22):
1. Privilege Leave :
i. Every employee is entitled to privilege leave as per the provisions made

in the Act.
ii. Leave can be accumulated up to three times of the leave entitled after
12 months employment i.e. after the employee complete the probation
periods and becomes regular employee of that particular company.
iii. Where leave is either refused or the worker is discharged before he

avails the leave at his credit, the employer shall pay full waged for the
period of leave due. But the payment only compromises of the basic
salary + dearness allowances only. No other allowances will be paid to
the employee.
iv. Wages for the leave period shall be calculated on the basis of average of
the wages during the preceding three months including dearness
allowance.
v. Employee shall apply in writing 15 days in advance and the employer

shall pass orders thereon not later than 7 days from the receipt of the
application i.e. PL leave should always be informed and sanctioned
leave, before an employee proceeds for PL leave.
vi. In the leave card, they have to mention the contact address, with the
telephone number, so that in the emergency they may be contacted.
2. Sickness or Casual leave :
Every employee in health care organization is entitled to sickness or causal

leave for twelve days at the rate of one day for every month. Year means,
calendar year, i.e. January to December. But most of the government
! !336
organization gives 10 days each sick leave and the casual leave
respectively, in one financial year .i.e. between 1 st April to 31 st march.
i. This leave can be granted on the ground of sickness or for private

affairs.
ii. Balance of this leave cannot be carried over to the next year.
K. Wages during Leave (Section 23):
Every employee shall be paid for the period of his leave at a rate equivalent
to the daily average of his wages for the days on which he actually worked
during the preceding three months, exclusive of any earnings in respect of
overtime but inclusive of dearness allowance. No other allowance will be
paid except for basic and dearness allowance. In many government
organizations, government doctors are not allowed to do private practice
and are paid Non- practicing allowances @ 25 % of their basic pay.
However this NPA component is included in the calculation of compulsory
provident fund calculation and for the reimbursement of the paid leave.
6.2.3. Cleanliness, Lighting and Ventilation, Drinking Water etc.

(Secs. 25 & 26):
• Section 25 lays down that the premises of every establishment whether

hospital or nursing homes shall be kept clean.
• Cleaning is to be carried out at such intervals like daily cleaning,

biweekly cleaning, and fort nightly or monthly cleaning should be carried
out house keeping department.
• Section 26 says the premised of every establishment shall be kept

sufficiently lighted and ventilated during all working hours.
Recommended illumination is for casual reading
------ 100 Lux
General office work ------ 400 luxFine assembly ---------- 900 lux
Very severe task ------- 1300 to 2000 lux
! !337
Adequate ventilation is provided by natural ventilation, exhaust fans or

by air conditioners.
• Further, suitable arrangements shall be made for supply of drinking water

to the employees. Continuous maintenance of 1.0 mg/lit (1ppm) of free
chlorine residual provides adequate protections against bacteria & virus.
• Precautions against Fire etc. (Section 28):
Section 28 of the Act authorizes the Government to prescribed

precautions against fire etc. The responsibility for taking precautions in
clearly that of the occupier.
6.2.3. Employer to furnish Letter of Appointment to Employees

(Section 34):
The employer is required to furnish every employee with a letter of

appointment. It shall contain the following and such other particulars as
may be prescribed, namely:
a. The name of the employer

b. The name, if any, and the postal address of the establishment
c. The name, father's name and the age of the employee
d. The hours of work
e. Date of appointment
• Letter of appointment to employees:
The letter of appointment to employees as required under Section 34 of the

Act shall contain the following further particulars:
i. The rate of wages or salary, i.e. the pay scale of the hospital employee
ii. Designation or nature of work for which employed, i.e. the post for
which the employee has been selected
iii. And other concessions or benefits, if any that may be special to his
appointment like any special increments or additional salary which has
been fixed and mention in the appointment letter.
! !338
• Notice of Dismissal (Section30) :
1. No employer shall dispense with the services of an employee who has

been in his continuous employment for not less than three months,
without giving such persons at least one month's notice in writing or
wages in lieu of such notice. This is known as the notice period before
the termination of the employee.
2. No employee who has put in three months continuous service shall be

terminated from his employment unless he has given to his employer a
notice of at least one month, in writing. In case he fails to give one
month's notice he will be released from his employment on payment of
the amount equal to one month's pay. This is known as recovery before
the termination of the employee.
3. The amount payable as compensation under this section shall be in

addition to any fine payable under Section 40.
4. No person who has been awarded compensation under this section shall
be at liberty to bring a civil suit in respect of the same claim.
6.3 EMPLOYEES’ STATE INSURANCE ACT, 1948:
The Employees' State Insurance Act is a piece of social security legislation

enacted in 1948. Its object is to introduce social insurance by providing for
certain benefits to employees in the form of cash , case of sickness,
maternity and employment injury and for certain other matters in relation
thereto.
The Act shall apply to all factories using power other than the seasonal
factories. The Act has been extended by many State Governments or
shops, hotels, restaurants, cinemas, including preview theaters, newspaper
establishments, road transport undertakings etc. employing 20 or more
persons on continuous basis (excluding mines, railways, and defense
establishment ).with effect from 01.04.2014, the ACT covers all
employees- manual, clerical, super visionary, and technical getting up to Rs
7500 per month. Now from February 2014 onward the upper limit of ESIS
benefit is raised to Rs 25000 per month.
! !339
6.3.1. DEFINITIONS:
A. Contribution [Sec.2 (4)]:

It means the sum of money payable to the Employees' State Insurance
Corporation by the principal employer in respect of an employee and
includes any amount payable by or on behalf of the employee in
accordance with the provisions of this Act. The scheme is run by the
contribution made by employees and employers and the grants from the
central and state governments. The employer contributes 4.75 % of the
total wages bills, the employee contribute 1.75% of the wages. Employees
getting daily wages of below Rs 15 are exempted from the payment of the
contribution. The state government share 1/8 of the total cost of medical
cost and ESI corporation share 7/8 of total cost of medical expenditure.
B. Dependent [Sec.2 (6)]:
"Dependent" means any of the following relatives of a deceased insured

person namely:
1. The following is included in the list of "Dependent" as per ESI Act 1948
a. A widow of the deceased person

b. a minor legitimate son below 18 years
c. an unmarried legitimate daughter totally dependent on their parents
for her livelihood
d. legally adopted son / daughter
2. If wholly dependent on the earning of the insured person at the time of

his death, a legitimate or adopted son or a daughter who has attained
the age of 18 years and is infirm OR mentally retarded and due to his
infirmity he will be totally dependent on his parents for his livelihood
through out his life.
3. If wholly or in part dependent on the earnings of the insured person at

the time of his death -
• A parent other than a widowed mother.
! !340
• A minor illegitimate son, an unmarried illegitimate daughter or a

daughter legitimate or illegitimate if married and a minor or if widowed
and a minor,
• A widowed daughter-in-law,
• A minor child of a pre-deceased son,
• A minor child of a pre-deceased daughter where no parent of the child

is alive, or
• A paternal grandparent if no parent of the insured person is alive.
C. Family [Sec.2 (11)]:
'Family' means all or any of the following relatives of an insured person,

namely -
• a spouse;
• a minor legitimate or adopted child dependent upon the insured person;
• a child who is wholly dependent on the earnings of the insured person

and who is (a) receiving education, till he or she attains the age of 21
years (b) an unmarried daughter;
• a child who is infirm by reason of my physical or mental abnormality or

injury and is wholly dependent on the earnings of the insured person, so
long as the infirmity continues;
• Dependent parents i.e. not covered by any type of company medical

insurance or group or self sponsored insurance.
D. Miscarriage [Sec.2 (14-B)]: the following facts support the

meaning of Miscarriage under the (Sec.2 -14-B) of ESI act 1948.
i. It means expulsion of the contents of a pregnant uterus
ii. At any period prior to or during the 26 weeks of pregnancy
! !341
iii. Which spontaneously but does not include any miscarriage which forced
to occur
iv. Any miscarriage which forced to occur either due to drugs - for example
laminaria tent or due to mechanical dilatation of cervix, commonly used
in the second trimester abortion, is made punishable under the Indian
Penal Code, 1860
E. Sickness [Sec.2(20):
It means a condition which requires medical treatment and attendance and

necessitates abstention from work on medical grounds i.e. due to medical
illness; patient is incapacitated to perform his office duty.
6.3.2. BENEFITS (chapter V Secs, 46 to 73):
The Act provides for 7 types of benefits to the insured persons, their
dependants or certain other persons who are entitled. These benefits are
as follows:
1. Sickness benefit
2. Maternity benefit
3. Disablement benefit
4. Dependant's benefit
5. Medical benefit
6. Funeral expenses
7. Rehabilitation allowances
All these benefits except the medical benefit are monetary benefits and are
paid in cash. The rules regarding these benefits are contained in Secs. 46
to 58 and the First Schedule to the Act.
1. Sickness benefit [Secs.46 (1) (a), 47to 49] :
It consists of periodical cash payment to an insured person in the case of

sickness, if his sickness is duly certified by an insurance medical officer or
insurance medical practitioner. The benefit is payable for a maximum
period of 91 days, in any continuous period of 365 days, the daily rate
being about 50% of the daily wages. Person receiving the sickness benefit
is required to remain under medical treatment provided under the act.
! !342
• Extended sickness benefit: - this is provided to the insured person
a. Who has been in continuous employment for 2 years
b. Given for 34 long term illness w.e.f from 1.1.2000.
c. 91 days of sickness benefit , can be extended to 309 days
d. Calculations of payment remain the same as mentioned in the sickness

benefit.
Maternity benefit [Secs.46 (1) (b) and 50]: of ESI Act 1948
• An insured woman shall be entitled to maternity benefit in case of (a)

confinement, or (b) miscarriage, or (c) sickness arising out of pregnancy,
confinement, premature birth of a child or miscarriage. Before an insured
woman is entitled to maternity benefit she must be certified to be eligible
for such payment by an authority specified in this behalf. [Sec.46 (1)
(b)].
• To obtain maternity benefit, the insured woman must get certificate of

pregnancy, of the expected date of confinement and of actual
confinement and send them to the Local Office to which she is attached.
• For confinement, the duration of the benefit is 12 weeks, for miscarriage,

the benefit is 6 weeks, and for sickness arising out of confinement etc,
the benefit is up to 30 days like for example if a female becomes sick
during her pregnancy due to raised blood pressure - pre-eclampsia, then
in such cases a rest of 30 says is given.
• All benefit is paid in cash @ of full wages or emoluments.
2. Disablement benefit [Secs.46(1)(c), 51, 51-A to 51-D, 51-A, 53

to 55] :
• Disablement benefit shall be payable to an insured person suffering from

disablement as a result of an employment injury sustained as an
employee if he is certified to be eligible for such payment by an authority
specified in this behalf or due to the occupational diseases such as
! !343
pneumosilicosis (coal miners), bagasosis (sugarcane dust) bysionisis

(cotton dust allergy), as per [Sec. 46(1) (c)].
• Payment is paid in cash, besides medical treatment
• Disability may be temporary or partial permanent or total permanent
• The rate of temporary disablement benefit is about 85% of the wages as

long as the temporary disablement lasts.
• In the cases of total permanent disablement, the insured person will get
life long pension at the full rate and proportion of full pension in the
cases of partial disablement.
3. Dependant's Benefit [Secs.46(1)(d), 52 to 55-A]:
• If an insured person dies as a result of an employment injury sustained

as an employee, his dependants who are entitled to compensation under
the Act, shall be entitled to periodical payments referred to as
dependant's benefit [Sec.46(1)(d)].
• Pension at the rate 40% more than the standard benefit rate will be paid
periodically to the widow and the children with the prescribed share.
• An eligible son or daughter is entitled to dependent benefit up to the age

of 18 years. The benefit is withdrawn if the daughter gets married.
4. Medical benefit [Secs.46(1)(e), 46 (2), and 56 to 59]:
• The medical benefit consists of ''full medical care'' and includes the
following
1. OPD care
2. Supply of drugs & dressing
3. Specialist services of all branches
4. Pathological & radiological tests
5. Antenatal, natal, & postnatal care
6. Domiciliary services
7. Immunization services
8. Family planning services
! !344
9. Emergency services
10.Ambulance service
11.Health education
12.In patient services
• In the complicated cases, patient may be referred even outside the state
at the cost of ESI Corporation.
• Medical care is provided either directly through the agency of ESI

hospital & dispensaries or through a panel of private medical practitioner
(panel system) appointed as insurance medical practitioner.
• Dentures, spectacles, and the hearing aids are provided free to the
patients who are incapacitated due to employment injury.
• Similarly artificial limbs are provided free to the patients who are
incapacitated due to employment injury.
• Special appliances such as hernia belt, walking calipers, surgical boots,

spinal braces, and jackets are provided as per prescribed by specialist.
5. Funeral expenses [Secs.46(1)9f)]:
• In case the insured person dies, the expenditure on his funeral, known as
'funeral expense', shall be payable to the eldest surviving member of the
family.
• Where the deceased person did not have a family or was not living with
his family at the time of his death, the funeral expense shall be payable
to the person who actually incurs the expenditure on the funeral of the
deceased insured person.
• The amount given for funeral expenses should not exceed Rs 2500.
6. Rehabilitation allowances :-
On monthly payment of Rs 10, the insured person and his family continue
to get medical benefit after the episode of permanent disablement or
retirement.
! !345
6.3.3. Benefit to employees, covered in ESIS Act
1. Exemption from the applicability of workman compensation Act 1923.
2. Exemption from maternity benefit Act 1961
3. Exemption from the payment of medical allowances to the employee

and their dependants or arranging for their medical care
4. Rebate under the income tax act on the contribution deposited in the
ESI account
5. Healthy work force
6.4 EMPLOYEES' PROVIDENT FUND ACT, 1952
• The Employees Provident Funds (and Miscellaneous Provisions) Act came

into force in November, 1952.
• The object of the act is to provide for the institution of provident funds
and family pension and deposit-linked insurance schemes for employees
in factories and other establishments.
6.4.1. DEFINITIONS
a. Contribution [Sec.2(c)]:
It means a contribution payable in respect of a member, under the
Employees' Provident Fund Scheme or the contribution payable in respect
of an employee to whom the Employees' Deposit-linked Insurance Scheme
applies. Usually for compulsory provident fund, 10% deduction of the
employee basic pay + dearness allowances is made and the same is
contributed from the employer side. For voluntary PF, maximum one basic
pay will be deducted, after deducting employee CPF from this amount.
b. Pension Fund (Sec.2 (kA)] :

"Pension Fund" Means the Employees' Pension Fund established under sub-
section (2) of Section 6A.
! !346
c. Pension Scheme [Sec. 2(kB)]:

"Pension Scheme" means the Employees' Pension Scheme framed under
sun-seciton91) of Section 6A.
d. Scheme [Sec. 2(I)]:

It means the Employees' Provident Fund Scheme framed under Section 5.
Superannuation [Sec. 2 (II)]:

"Superannuation", in relation to an employee, who is the member of the
Pension Scheme, means the attainment, by the said employee, of the age
of 58 years. At present most of the organization is increasing the
retirement age to 60 years.
6.4.2. SCHEMES UNDER THE ACT:
In exercise of the powers conferred under the Act, the Central Government
has framed the following three schemes:
A. The Employees' Provident Fund Scheme, 1952.

B. The Employees' Pension Scheme, 1995; and
C. The Employees' Deposit-Linked Insurance Scheme; 1976.
6.4.3. EMPLOYEES' PROVIDENT FUND SCHEMES:
• Every employee employed in or in connection with the work of a factory

or other establishment to which this scheme applies, other than an
excluded employee, shall be entitled and required to become a member
of the fund from the date of joining the factory or establishment.
a. Contributions are:
• As per Section 6, the contribution which shall be paid by the employer to

the Fund shall be 10% of the basic wages, dearness allowance and
retaining allowance, if any, for the time being payable to each of the
employees whether employed by him directly or through a contactor and
the employee's contribution shall be equal to the contribution payable to
the employer.
• Employees, if they desire, may make contribution exceeding the

prescribed rate but subject to the condition that employer shall not be
! !347
under any obligation to contribute over and above the contribution

payable as prescribed by the Government from time to time under the
Act.
• For the medical professional, NPA is also calculated in the PF

contribution.
b. Advances/ Withdrawals :( non refundable advances from PF

contribution)
Advances from the Provident Fund can be taken for the following purpose
subject to condition laid down in the relevant pares of the Employees'
Provident Fund Scheme;
1. Non-refundable advance for payment of premium towards a policy or

policies of Life Insurance of a member;
2. Withdrawal for purchasing a dwelling house or flat or for construction of

a dwelling house including the acquisition of a suitable site for the
purpose, or for completing / continuing the construction of a dwelling
house, already commenced by the member or the spouse and an
additional advance for additions, alteration or substantial improvement
necessary to the dwelling house;
3. Non-refundable advance to members due to temporary closure of any

factory or establishment for more than 15 days, for reasons other than
a strike or due to non- receipt of wages for 2 months or more, and
refundable advance due to closure of the factory or establishment for
more than 6 months;
i. Non-refundable in case of :
a. Hospitalization lasting one month or more, or
b. Major surgical operation in a hospital, or
c. Suffering from T. B., Leprosy, Paralysis, Cancer, Mental derangement

or heart ailment, for the treatment of which leave has been granted
by the employer.
! !348
ii. Non-refundable advance for the treatment of a member of his family,

who has been hospitalized or requires hospitalization, for one month
or more:
a. For a major surgical operation; or
b. For the treatment of T.B., Leprosy, Paralysis, Cancer, Mental

derangement or heart ailment.
1. Non-refundable advance for daughter / son's marriage, self-marriage,

the marriage of sister / brother or for the post matriculation education
of son or daughter;
2. Non-refundable advance to members affected by cut in the supply of

electricity;
3. Non-refundable advance in case property is damaged by a calamity of

exceptional nature such as floods, earthquake or riots;
4. Withdrawals for repayment of loans in special cases; and
5. Non-refundable advance to physically handicapped members for

purchasing and equipment to minimize the hardship on account of
handicap.
C. Final Withdrawal:
• Full accumulations with interest thereon are refunded in the event of

death, permanent disability, superannuation, retrenchment or migration
from India for permanent settlement abroad / taking employment
abroad, voluntary retirement, certain discharges from employment under
Industrial Disputes Act, 1947, transfer to an establishment / factory not
covered under the Act.
• In other cases, with permission of commissioner or any subordinate

officer to him, a member is allowed to draw full amount when he cases to
be in employment and has not been employed in any establishment to
which the Act applies for a continuous period of at least 2 months. This
requirement of 2 months waiting period shall not apply in cases of female
! !349
members resigning from service for the purpose of getting married as it

is the social and personal events.
6.4.4. EMPLOYEES' PENSION SCHEME:
• The Employees' Pension Scheme is compulsory for all the persons who
were members of the Family Pension Scheme, 1971.
• It is also compulsory for the persons who become members of the

provident Fund from 16.11.1995 i.e. the date of introduction of the
Scheme.
• The PF subscribers, who were not members of the Family Pension

Scheme, have an option to join this Pension Scheme. The Scheme came
into operation w.e.f. 16.11.1995, but the employees, including those
covered under the Voluntary Retirement Scheme have an option to join
the scheme w.e.f. 1.4.1993.
• Minimum 10 years contributory service is required for entitlement to

pension. Normal superannuation pension is payable on attaining the age
of 58 years.
• Pension on a discounted rate is also payable on attaining the age of 50

years. Where
• pensionable service is less than 10 years, the member has an option to
remain covered for pensioner benefits till 58 years of age or claim return
of contribution / withdrawal benefits.
• The Scheme provides for payment of monthly pension in the following

contingencies - (a) Superannuation on attaining the age of 58 years; (b)
Retirement; (c) Permanent total disablement; (d) Death during service;
(e) Death after retirement / superannuation / permanent total
disablement; (f) Children pension scheme , also known as family pension
scheme; and (g) Orphan pension.
• The amount of monthly pension will vary from member to member

depending upon his pensionable salary and pensionable service.
! !350
• The formula for calculation of monthly member's pension is a under :
* Pensionable Salary x (Pensionable Service + 2)
Member's Pension = —————————————————-

70
• To illustrate, if the contributory service is 33 years and pensionable
salary is Rs. 5,000 per months, the above formula operates as given
below :
* Rs. 5,000 x (33 + 2)
*
Member's Pensions = --------------------------------- = Rs. 2,500 p.m.
70
• In case where the contributory service is less than 20 years but more
than 10 years, monthly pension is required to be determined as if the
member has rendered eligible service of 20 years. The amount so arrived
shall be reduced at the rate of 32 per cent for every year by which the
eligible service fails short of 20 years, subject to maximum reduction of
25 per cent.
6.4.5 EMPLOYEES' DEPOSIT-LINKED INSURANCE SCHEME:
• The Central Government has accordingly framed the Employees' Deposit-

linked Insurance Scheme, 1976. It came into force on the 1st August,
1976.
1. Application of the Scheme: The Employees' Deposit-Linked Insurance

Scheme, 1976 is applicable to all factories / establishments to which the
Employees' Provident Funds and Miscellaneous Provisions Act, 1952
applies.
2. Contributions to the Insurance Fund: The employees are not

required to contribute to the Insurance Fund. The employees are
required to pay contributions to the Insurance Fund at the rate of 1% of
the total emoluments, i.e. basic wages, dearness allowance including,
cash value of any food concession and retaining allowance, if any.
3. A d m i n i s t r a t i v e E x p e n s e s : T h e e m p l oye e s o f a l l c ove r e d
establishments are required to pay charges to the Insurance Fund, at
! !351
the rate of 0.01% of the pay of the employee-members for meeting the
administrative charges, subject to a minimum of Rs. 2/- per month.
4. Nomination: The nomination made by a member under the Employee

Provident Fund Scheme 1952 or in the exempted provident fund is
treated as nomination under this scheme.
5. Payment of Assurance Benefit : In case of death of a member, an

amount equal to the average balance in the account of the deceased
during the preceding 12 months or period of membership, whichever is
less shall be paid to the persons eligible to receive the amount or the
Provident Fund accumulations.
6.5 THE PAYMENT OF GRATUITY ACT, 1972:
• Gratuity is a kind of retirement benefit, like provident fund or pension.
• It is a payment which is intended to help an employee after his

retirement whether the retirement is the result of the rules of
superannuation or of some physical disability.
• The general principle underlying gratuity schemes is that by faithful

service over a long period the employee is entitled to claim a certain
amount as retirement benefit. Thus it is earned by an employee as a
reward for long and meritorious service. The Payment of Gratuity Act was
passed in 1972.
6.5.1. DEFINITIONS:
a. Completed Year of Service [Sec. 2 (b)]:
It means continuous service for 1 year.
b. Continuous Service [Sec.2(c)]:
• 'Continuous Service' means continuous service as defined in Sec. 2-A. An

employee shall said to be in continuous service for a period if he has, for
that period, been in uninterrupted service, including service which may
be interrupted on account of sickness, accident, leave, absence from duty
without leave (not being absence in respect of which an order treating
! !352
the absence as break in service has been passed in accordance with the
standing orders, rules or regulations governing the employees of the
establishment), lay-off, strike, or lock-out, or cessation of work not due
to any fault of the employee (Sec. 2-A, Clause 1). That is there should
not be break in the service where payment in the form of monthly salary
is obstructed, for example cases of leave without pay. (LWP).
• Where an employee (not being an employee employed in a seasonal

establishment) is not in continuous service for any period of 1 year, he
shall be deemed to be in continuous service under the employer for the
said period of 1 year, if during the period of 12 calendar months
preceding the date with reference to which calculation is to be made, he
has actually worked under the employer for not less than -
A. 190 days in the case of an employee below the ground in a mine such
the employees working in coal mines, Mica mines , iron ores fines ,
that is doing hazardous work in the difficult situations or any
establishment which works for less than 6 days in a week; and
B. 240 days in any other case.
• For determining the continuous service for any period of 6 months for
the payment of gratuity, the number of days the employee should have
actually worked should be half the number of days actually worked
which constitute continuous service for a period of 1 year, i.e. 95 and
120 respectively.
c. Superannuation [New Sec.2(r)]:
'Superannuation', in relation to an employee, means the attainment by the

employee of such age as is fixed in the contract or conditions of service as
the age on the attainment of which the employee which the employee shall
vacate the employment. The term 'superannuation' means retirement of an
employee on attainment of a certain age which is usually 58 years in the
most of the organization, which is increased to 60 years at present. For
university professor & teacher teaching in the medical colleges in India, the
retirement is age is increased to 62 years. For the judges of Supreme
Court of India, commercial pilots, the retirement age is extended up to 65
years.
! !353
6.5.2. PAYMENT AND FORFEITURE OF GRATUITY AND EXEMPTION:
a. Payment of Gratuity (Sec.4):
Sec. 4 deals with circumstances in which gratuity becomes payable to an

employee and the cases when gratuity may be forfeited. The various
provisions of Sec. 4 are discussed below:
1. Gratuity Payable on Termination of Employment :
• Gratuity shall be payable to an employee on the termination of his

employment after he has rendered continuous service for not less than 5
years. If an employee leaves his job before 5 years, then in such cases,
he or she is not entitled for the payment of the gratuity. In the normal
circumstances, he is entitled for gratuity after 5 years of continuous
service if
a. on his superannuation, or
Where an employee is appointed or continues in appointment after the

date of his superannuation, he is entitled to gratuity for the full period of
service and not merely up to the age of superannuation.
b. on his retirement or resignation, or
c. On his death or disablement due to accident or disease [Sec.4 (1)].
2. Persons Entitled for Gratuity :

Gratuity is payable to the employee himself. However, in the case of death
of the employee, it shall be paid to his nominee and if no nomination has
been made, to his heirs and where any such nominees or heirs is a minor,
the share of such minor, shall be deposited with the controlling authority
who shall invest the same for the benefit of such minor in such bank or
other financial institution, as may be prescribed, until such minor attains
majority i.e. after attaining the age of 18 years.
! !354
3. Rate of Gratuity :
Fore every completed year of service or part thereof in excess of 6 months,
the employer shall pay gratuity to an employee at the rate of 15 days
wages based on the rate of wages last drawn by the employee concerned.
In the case of a monthly rated employee 15 days, wages shall be
calculated by dividing the monthly rate of wages last drawn by him by 26
and multiplying the quotient by 15. The maximum amount of gratuity
allowed under the Act is Rs. 3, 50,000/-, which is now increased to
10,000,000(Rs 10 lakhs).
Exemption under Sec. 5:

Sec. 5 Empowers the appropriate Government to exempt, by notification
published in the Official Gazette, any establishment, factory, mine, oilfield,
plantation, port, railway company or shop to which this Act applies, from
the operation of the provisions of this Act if, in the opinion of the
appropriate Government, employees in such establishment, etc. are in
receipt of gratuity and pensioner benefits not less favorable than the
benefits conferred under this Act.
4. Forfeiture of Gratuity :
• The gratuity of an employee whose services have been terminated for

any act, willful omission or negligence causing any damage or loss to, or
destruction of, property belonging to the employer, shall be forfeited to
the extent of the damage or loss so caused.
• The gratuity payable to an employee may be wholly or partially forfeited

if the services of such employee have been terminated for -
i. his riotous or disorderly conduct or any other act of violence on his

part, or
ii. Any act which constitutes an offence involving moral turpitude
provided that such offence is committed by him in the course of his
employment.
! !355
6.5.3. COMPULSORY INSURANCE AND PROTECTION OF GRATUITY:
a. Compulsory Insurance (Sec.4-A):

According to Sec. 4-A, every employer shall obtain an insurance for his
liability for payment towards the gratuity under the Act from the Life
Insurance Corporation or any other prescribed insurer with effect from such
date as may be notified by the appropriate Government in this behalf.
b. Protection of Gratuity (Sec.13):

No gratuity payable under this Act and no gratuity payable to an employee
employed in any establishment, factory, mine, oilfield, plantation, port,
Railway Company or shop exempted under Sec. 5 shall be liable to
attachment in execution of any decree or order of any civil revenue or
criminal court.
6.5.4. NOMINATION (Sec. 6):
Each employee, as defined in the Act, is required to make a nomination

within a specified period and in the specified manner. The rules relating to
nomination are as follows:
1. Nomination within 90/30 days : Each employee, who has completed 1

year of service, after the commencement of the Payment of Gratuity
(Central) Rules, 1972, shall make within 90 days, and each employee
who completes 1 year of service after the date of the commencement of
these rules, within 30 days of completion of 1 year of service, a
nomination.
2. Distribution of amount of gratuity: An employee may, in his nomination,

distribute the amount of gratuity payable to him under the Act amongst
more than one nominee.
3. Nomination in favor of family members: If an employee has a family at

the time of making a nomination, the nomination shall be made in favor
of one or more members of his family. To protect the interests of the
family, it has been specifically provided that any nomination made by
such employee in favor of a person, who is not a member of his family
shall be void.
But if at the time of making a nomination the employee has no family,
the nomination may be made in favor of any person. If the employee
! !356
subsequently acquires a family, such nomination shall forthwith become

invalid and the employee shall make, within 90 days, a fresh nomination
in favor of one or more members of his family.
4. Modification of nomination: A nomination may be modified by an

employee at any time, after giving to his employer a written notice of
his intention to do so.
5. Death of nominee: If a nominee predeceases the employee, the interest

of the nominee shall revert to the employee. The employee shall then
make a fresh nomination in respect of such interest.
6. Safe custody of nomination: Every nomination, fresh nomination or

alteration of nomination, as the case may be, shall be sent by the
employee to his employer, who shall keep the same in his safe custody.
Further, it shall take effect from the date of receipt of the same by the
employer.
6.5.5 Employer's Duty of Determine about the Payment of Gratuity:
1. Sec. 7(2) lays down that as soon as gratuity becomes payable the
employer shall, whether the application has been made or not,
determine the amount of gratuity and give notice in writing to the
person to whom the gratuity is payable and also to the Controlling
Authority, specifying the amount of gratuity so determined.
2. Section 7(3) of the Act says that the employer shall arrange to pay the
amount of gratuity within thirty days from the date of its becoming
payable to the person to whom it is payable.
3. Section 7(3A): If the amount of gratuity payable under sub-section (3)

is not paid by the employer within the period specified in sub-section
(3), the employer shall pay, from the date on which the gratuity
becomes payable to the date on which it is paid, simple interest at the
rate of 10 per cent annum.
! !357
a. Payment of Gratuity:
The employer shall arrange to pay the amount of gratuity within 30 days
from the date it becomes payable to the person to whom the gratuity is
payable. This limit of 30 days for the payment of gratuity has been
introduced by the Amendment Act of 1987.
b. Payment of Interest:
This is a new provisions made by the Amendment Act of 1987. It the
amount of gratuity payable by the employer is not paid within a period
of 30 days, the employer shall pay simple interest at such rate, not
exceeding the rate notified by the Central Government from time for
repayment of long term deposits.
The Government may specify such rate of interest by notification
published in the Official Gazette. The interest shall be payable from the
date on which the gratuity becomes payable to the date on which it is
paid.
c. Recovery of Gratuity:
• If the amount of gratuity payable under the Act is not paid by the
employer, within the prescribed time, to the person entitled thereto, the
latter shall make an application to the controlling authority.
• The controlling authority shall issue a certificate for that amount to the
Collector. The Collector shall recover the amount together with by
notification published in the Official Gazette, specify, from the date of
expiry of the prescribed time, as arrears of land revenue and pay the
same to the person entitled thereto.
! !358
6.6 THE MATERNITY BENEFIT ACT, 1961:
The Act was passed to regulate the employment of woman in certain

establishments for certain periods before and after child-birth and to
provide for maternity benefit and certain other benefits (Preamble to the
Act).
6.6.1. DEFINITIONS:
Miscarriage [Sec.3 (f)]: It means exculpation of the contents of a

pregnant uterus at any period prior to or during the 26th week of
pregnancy but does not include any miscarriage, the causing of which is
punishable under the Indian Penal Code, 1860.
Woman [Sec.3 (o)]: 'Woman' means a woman employed, whether

directly or thorough any agency, for wages in any establishment.
6.6.2. Employment of, or work by women, prohibited during certain

periods (Sec. 4):
Under Sec.4 of the Act, an employer is prohibited from knowingly

employing any woman in any establishment during the 6 weeks
immediately following the day of her delivery or her miscarriage [Sec.
4(1)]. Likewise, a woman is prohibited from working in any establishment
during this period of 6 weeks [Sec.4 (2). Further, if a pregnant woman
makes a request, she shall not be given any work of the following nature
during the period specified in Sec.4 (4):
1. Any work which is of arduous nature. Like the job of cabin crews flying
at 30,000ft in the airline industry.
2. Any work which involves long hours of standing like job of surgeons,
anesthetist etc.
3. Any work which in any way is likely to interfere with her pregnancy or
the normal development of fetus or is likely to cause her miscarriage or
otherwise adversely affect her health [Sec.4 (3).]. for example in a
hospital practices, once the , anesthetist declares about their pregnancy,
they are permitted to go on maternity leave as there is increased
chances of spontaneous abortion due to the effect of the anesthetics
! !359
gases. Similarly the doctors working in the radiology are also subjected
to the hazardous effect of the radiation and are advised to proceed to
their maternity leave as early as possible.
6.6.3. The period referred to in Sec4 (3) shall be:
a. The period of 1 month immediately proceeding the period of 6 weeks

before the date of her expected delivery.
b. Any period during the said period of 6 weeks for which the pregnant
woman does not avail of the leave of absence under Sec. 6[Sec.4 (4)].
c. It also varies from organization to the organization. For example in AIR

INDIA female cabin crews are given paid maternity leave for 135 days,
where as in the central government, this leave is given up to 180 days.
6.6.4. MATERNITY BENEFIT:
a. Right to payment of maternity benefits (Sec.5 as amended by

the Amendment Act of 1988):
• Subject to the provisions of the Act, every woman shall be entitled to,
and her employer shall be liable for, the payment of maternity benefit.
Maternity benefit is a payment to a woman at the rate of the average
daily wage for the period of her actual absence, that is to say, the period
immediately preceding the day of her delivery and any period
immediately following that day [Sec.5(1)].
a. Average daily wage : It means the average of the woman's wages

payable to her for the days on which she has worked during the period
of 3 calendar months immediately preceding the date from which she
absents herself on account of maternity, the minimum rate of wage
fixed or revised under the Minimum Wages Act, 1948.
! !360
6.6.5. Conditions for Payment of Maternity Benefit:
The following conditions must be fulfilled before maternity benefit becomes

payable to a woman worker in an establishment:
1. Work for not less than 80 days to have been put in. The woman must
have actually worked in an establishment of the employer form whom
she claims maternity benefit for a period of not less than 80 days in the
12 months immediately preceding the date of her expected delivery
[Sec.5(2)].
2. Maternity benefit for a maximum period of 12 weeks. The maximum

period for which the woman shall be entitled to maternity benefit shall
be 12 weeks of which not more than 6 weeks shall precede the date of
her expected delivery [Sec.5(3)].
3. Death: If the woman dies during this period of 12 weeks, the maternity
benefit shall be payable only for the days up to and including the day of
her death [Proviso 1 to Sec.5 (3)]. Where the woman having been
delivered of a child dies during her delivery or during the period
immediately following the date of her delivery for which she is entitled
for the maternity benefit, leaving behind in either case the child, the
employer shall be liable for payment of maternity benefit for that entire
period. If the child also dies during the said period, the employer shall
be liable for the payment of maternity benefit for the days up to and
including the date of the death of the child [Proviso 2 to Sec.5(3)].
6.6.6. Notice of claim for maternity benefit and payment thereof

(Sec. 6):
Any woman employed in an establishment and entitled to maternity benefit

under the provisions of the Act may give notice to her employer, stating
that her maternity benefit and any other amount to which she may be
entitled may be paid to her or to such person as she may nominate in the
notice. The notice shall be in writing and in the prescribed form. It shall
also state that she will not work in any establishment during the period for
which she receives maternity benefit [Sec.6 (1)]. In the case of a woman
who is pregnant, the notice shall state the date from which she will be
absent form work. This date will not be earlier than 6 weeks from the date
! !361
of her expected delivery [Sec.6 (2)]. If she soon as possible after the
delivery [Sec.6 (3)].
On receipt of the notice, the employer shall permit the woman to be absent
herself from the establishment during the period for which she receives the
maternity benefit [Sec.6 (4).
Mode of Payment:
Amount of maternity benefit for the period preceding the date of the
expected delivery of the woman shall be paid in advance by the employer
to her on production of such proof as may be prescribed that the woman is
pregnant. The amount due for the subsequent period shall be paid by the
employer to the woman within 48 hours of production of proof that the
woman has delivered a child [Sec.6 (5)].
Medical Bonus (Sec.8):

Every woman entitled to maternity benefit under the Act shall also be
entitled to receive from her employer a medical bonus of Rs. 250, if no
pre-natal confinement and post-natal care is provided for by the employer
free of charge.
In addition to the authorized absence under Sec. 6(3), the Act provides for
the following leave:
Leave for miscarriage (Sec.9): In case of miscarriage, a woman shall on

production of the prescribed proof, be entitled to leave with wages at the
rate of maternity benefit, for a period of 6 weeks immediately following the
day of her miscarriage.
Other leave (Sec.10): A woman suffering from illness arising out of

pregnancy, delivery, premature birth of a child or miscarriage shall, on
production of the prescribed proof, be entitled to leave with wages at the
rate of maternity benefit for a maximum period of 1 month. This leave is in
addition to the period of absence allowed to her under Sec.6or under Sec.
9.
Nursing breaks (Sec.11): Where a woman, after having delivered a

child, returns to duty after such delivery, she shall be allowed in the
course of her daily work 2 breaks of the prescribed duration for nursing the
! !362
child until the child attains the age of 15 months. These nursing breaks
shall be in addition to the interval for rest allowed to her.
Summary:
Industrial Employment (Standing Orders) Act, 1946 -For achieving

industrial harmony and peace this Act was passes. It is a beneficent to
define with sufficient precision, the conditions of employment of workmen
employed under them and to make known to such workmen. The Act
applied to every establishment wherein 100 or more workmen are
employed on any day of the preceding 12 months.
Understanding order No. 25 a workman guilty of misconduct may be

warned of censured or fined subject to any in accordance with the
provisions of the payment of wages Act 1936 suspended by an order in
writing signed by the manager for a period not exceeding 4 days,
dismissed without notice.
The Shops and Establishments Act, 1954 - These Acts apply in the first
instance to shops, commercial establishments, restaurants, hotels and
places of amusements in certain notified areas. The State Governments
have the power to extend the application of such Acts to such other areas
or to such other categories of undertakings in such areas as they may
consider necessary.
The main provisions of the Act relate to the regulation of hours of work,
Payment of wages, Leave and holidays, Terms of service and other
conditions of work of person employed in shops, commercial
establishments, establishments for public entertainment or amusement and
other establishments, Employment of children and young person.
Employees' State insurance act, 1948: The Employees' State Insurance

Act is a piece of social security legislation enacted in 1948. Its object is to
introduce social insurance by providing for certain benefits to employees in
case of sickness, maternity and employment injury and for certain other
matters in relation thereto.
The Act shall apply to all factories. The Act has been extended by many
State Governments or shops, hotels, restaurants, cinemas, including
! !363
preview theaters, newspaper establishments, road transport undertakings

etc. employing 20 or more persons.
The Act provides for 6 types of benefits to the insured persons, their
dependants or certain other persons who are entitled. These benefits are
Sickness benefit, Maternity benefit, Disablement benefit, Dependant's
benefit, Medical benefit, Funeral expenses.
Employees' Provident Fund Act, 1952 - The Employees Provident Funds

(and Miscellaneous Provisions) Act came into force in November, 1952. The
object of the act is to provide for the institution of provident funds and
family pension and deposit-linked insurance schemes for employees in
factories and other establishments.
Every employee employed in or in connection with the work of a factory or

other establishment to which this scheme applies, other than an excluded
employee, shall be entitled and required to become a member of the fund
from the date of joining the factory or establishment.
The Payment of Gratuity Act, 1972 - The general principle underlying

gratuity schemes is that by faithful service over a long period the employee
is entitled to claim a certain amount as retirement benefit. Thus it is
earned by an employee as a reward for long and meritorious service. The
Payment of Gratuity Act was passed in 1972. Sec. 4 deals with
circumstances in which gratuity becomes payable to an employee and the
cases when gratuity may be forfeited.
Gratuity is payable to the employee himself. However, in the case of death

of the employee, it shall be paid to his nominee and if no nomination has
been made, to his heirs and where any such nominees or heirs is a minor,
the share of such minor, shall be deposited with the controlling authority
who shall invest the same for the benefit of such minor in such bank or
other financial institution, as may be prescribed, until such minor attains
majority.
The Maternity Benefit Act, 1961 - The Act was passed to regulate the
employment of woman in certain establishments for certain periods before
and after child-birth and to provide for maternity benefit and certain other
benefits (Preamble to the Act).
! !364
Under Sec.4 of the Act, an employer is prohibited from knowingly

employing any woman in any establishment during the 6 weeks
immediately following the day of her delivery or her miscarriage [Sec.
4(1)]. Likewise, a woman is prohibited from working in any establishment
during this period of 6 weeks [Sec.4 (2).
Further, if a pregnant woman makes a request, she shall not be given any
work of the following nature during the period specified in Sec.4 (4): Any
work which is of arduous nature., Any work which involves long hours of
standing, Any work which in any way is likely to interfere with her
pregnancy or the normal development of foetus or is likely to cause her
miscarriage or otherwise adversely affect her health [Sec.4(3).].
! !365
Review Question:
1. Define important features of Industrial Employment (Standing Orders)

Act, 1946
2. What are the applicability and main provisions of The Shops and
Establishments Act? 1954
3. Define different benefits under Employees' State insurance act, 1948
4. What is the main features of Maternity benefit act, 1961
! !366
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
! !367
LABOUR LAWS APPLICABLE TO HEALTH CARE INSTITUTIONS – PART ‘B’
Chapter 7
Labour laws applicable to Health care
Institutions – Part ‘B’
7.0 Labour laws applicable to Health care Institutions – Part ‘B’
7.1 Minimum wages Act, 1948

7.1.1 Introduction
7.1.2 Fixing of Minimum Rate of Wages
7.1.3 Notification Fixing of Minimum Rates of Wages
7.1.4 Employment in Any Hospital
7.2 Payment of wages Act , 1936

7.2.1 Introduction
7.2.2 Rules for Payment of Wages
7.2.3 Deductions from wages
7.2.4 Maintenance of Registers and Records
7.2.5 Penalty for Offences under the Act (Sec.20)
7.3 Payment of bonus Act, 1965

7.3.1 Introduction
7.3.2 Definition
7.3.3 Determination of Bonus
7.3.4 Payment of bonus by doing case study and discussing the issues
related to different category of workers
7.3.4.1 Whether Bonus is payable on back-wages
7 . 3 . 4 . 2 W h e t h e r b o n u s i s p aya b l e t o A p p r e n t i c e s ,
Probationers, Part Time Employees and on Commission paid to
employees
7.3.4.3 Production Bonus – If Can Be Claimed by Sales Staff
7.3.4.4 Settlement providing bonus more than the maximum
provided under the payment of bonus act, 1965 – if valid.
7.3.4.5 Bonus: Contract Employee If Can Demand From
Principal Employer
7.3.4.6 Bonus – if payable on back wages
! !368
7.0. Labor Laws applicable to Health care Institutions - Part 'B'
7.1 THE MINIMUM WAGES ACT, 1948
Structure:
7.1.1 Introduction
7.1.2 Fixing of Minimum Rate of Wages
7.1.3 Notification Fixing of Minimum Rates of Wages
7.1.4 Employment in Any Hospital
• This is an Act to provide for fixing minimum rate of wages in certain

employments. This Act extends to the whole of India except for the State
of Jammu and Kashmir. Under the Act, the. Appropriate Government, as
per The Minimum Wages Act 1948 means any scheduled employment
carried on by and under the authority of the
a. Central Government or
b. Railway Administration
c. In relation to a Mine, Oil field or Major Port
d. Any Corporation established by a Central Act or the Central
Government
• The Competent Authority means the authority appointed by the

Appropriate Government by Notification in the Official Gazette, to
ascertain from time to time, the cost of livings index number applicable
to the employees employed in the scheduled employment specified in the
Notification.
• Cost of living index number in relation to employees in any scheduled

employment in respect of which minimum rates of wages have been filed
means the index number ascertained and declared by the Competent
Authority by notifications in Official Gazette to be the costs of living index
number applicable to the employees in such employment.
! !369
• As per The Minimum Wages Act 1948, Wages means
a. All remuneration
b. Expressed in terms of money
c. Which is expressed in the terms of the contract of employment
d. Expression of implied consent
• Employees means "any person who is employed for hire or reward to do

any work skilled such as doctors, paramedical staffs, educated hospital
administrator or unskilled, manual or clerical hospital staff such as
hospital administration clerk, hospital bill passing clerk etc in a scheduled
employment like day to day hospital functions , for example surgeons
doing scheduled operations, pathologist doing scheduled pathological
tests in respect of which minimum rates of wages have been fixed and
includes workers to whom any articles or materials are given out by
another person to be made up cleaned, washed, altered, ornamented,
finished, prepared, adopted or otherwise processed for sale for the
purposes of the trade or business of that person". This same concept is
used in the operation of corporate hospital which hospital services as the
tool to do the business.
• The relationship of employer and employees arises out of a contract of

employment or by contract of service. This concept is clearly mentioned
in issue of appointment letter issued to hospital staffs such as in the
appointment letter of the hospital staff nurses. The relationship implies
the right of the master to direct not only what work has to be done but
also the manner of doing it for example chief pathologist in a hospital
practice not only gives instruction hospital lab technicians about the
target related to number of the blood samples to be processed but also
instruct them how to do the test accurately. The extent of work and
extent of control which is requisite to establish the relationship or
employer and employee must necessarily vary with each business and is
by its very nature incapable of prescribed definition. But the correct
approach is to consider having regard to the nature of work whether or
not there is due control and supervision over the manner of execution of
the work. This type of leadership and supervision must be shown by the
head of department in the hospital, for HOD of cardiology department on
his junior cardiologist and his cath lab technician. The right of the master
i.e. that is the owner of the hospital, which he expresses to his employee
working in his hospital, are
! !370
a. The extent of work and extent of control- he set the targets which a
corporate hospital has to be achieve in terms of hospital business
b. To direct what work has to be done -i.e. which work in the hospital is
very important in terms of dealing with the emergency patients.
c. the manner in which the hospital activities has to be carried out
7.1.2. FIXING OF MINIMUM RATES OF WAGES:
The Appropriate Government shall in the manner and hereinafter provide

fixing the minimum rates of wages applicable to employees employed in an
employment specified in part 1 or 2 of the schedule which the State
Government may review at such intervals as it thinks fit. Such intervals
should not exceed years.
• The minimum rates of wages are fixed in the following manner:
1. The appropriate Government may fix a minimum rate of wages for time
work i.e many hospitals are now paying doctors on clock hour basis
which is mentioned in the appointment letter, which the newly recruited
doctors signs at the time appointment.
2. Minimum rates of wages for piece work for example there is difference
in the payment schedule for a hospital staff nurses working in a hospital
ward and the staff nurses employed in ICCU of the hospital.
3. A minimum rate to apply in substitution for the minimum rate which

would otherwise be applicable in respect of overtime work done by the
employees, for example many hospitals are paying Rs 120 / hrs basis
for the extra work done by their employed in house pharmacist.
In fixing or revising wages under this section differing minimum rates of

wages may be fixed for-
a. Different scheduled employment which may be paid on monthly basis,

clock hours basis, weekly basis, mainly paid to the unskilled hospital
staff such ward boys, hospital sweepers etc. For the doctors who do
extra surgeries, they are paid incentives for each extra surgeries
! !371
performed by them. For example, hospital pays incentives to their

cardiologists for doing extra coronary angiography and angioplasties.
b. Different classes of work for the same scheduled employment - for

example, the hospital may employ physicians with M.D. - general
medicine qualification, but their payment varies as per job assignment
and the payment of physicians employed in the intensive care unit will
be more than the payment of physicians employed in the ward and in
the OPD, because of extra & strenuous work done by them.
c. Skilled & unskilled hospital staffs, on the basis qualifications - such as

payment of general duty medical officer will be less than payment of
doctors with M.D. general medicine qualification.
d. Different localities for example payment of hospital staffs in class A

cities such as Mumbai, New Delhi, Kolkata, Chennai, Bangalore will be
more than class B cities such as Jaipur, Patna, Nagpur, Indore, etc.
• Minimum rated of wages of the hospital staff both skilled & unskilled
may be fixed by one or more of the following wage period namely by
the hours i.e. clock hours basis, by the day or weekly basis payments,
by the month i.e. monthly basis. Under section-4 of the said Act, it is a
definite indication that the basic wage is an integral part of the
minimum wage. Section 4 (1) postulates that the minimum rate fixed
or revised by the Appropriate Government under Section 3 may
constitute a basic rate of wages and a special allowance at the rate to
be adjusted at such intervals, and in such manner, as the appropriate
Government may direct toe afford as merely as practical, with the
variation in the cost of living index number applicable to such
employees.
! !372
Example:
Basic Wage + Special Allowance (like non practicing allowances +

dearness allowance + city compensatory allowances) * = Minimum
Wage
• Special Allowance which is paid to the hospital staff is based on Cost of

Livings Index, which fluctuates according to the Govt. declarations.
This has been discussed in the following case:-
Karnataka Film Chamber of Commerce, Bangalore V/s State of

Karnataka, 1986 LIC, Page 1890 Karnataka High Court
• The Procedure of Fixing and Revising Minimum Wages :
1. In fixing minimum rate of wages in respect of any scheduled

employment, the Appropriate Government shall appoint many
committees and sub-committees as it considers necessary to hold
enquires and advise it in respect of such fixation or revision, as the case
may be. Usually GOI revise the salary every 10 years, on the basis
recommendation made by different committee. Usually pay committee
is set up 2 years before the actual date of recommendation of the pay
commission.
2. By notification in the Official Gazette published its proposal for the

information of persons likely to be affected thereby and specify a date
not less than 2 months from the date of notification on which the
proposals will be taken into consideration.
3. the ways Fixing and Revising Wages of the hospital staffs as per the
recommendations of The Minimum Wages Act 1948
4. Setting up Pay committees
5. Setting up the pay panel commission
6. By notification in the Official Gazette
! !373
7.1.3. Notification fixing of Minimum Rates of Wages:
• Validity of :
Any notification issued by the State Government after first complaint with
the formalities under Section 5(1) and after considering the evidence of
committee and all representations received is perfectly valid and not open
to challenge. Manohar Narayan Joshi V/s State of Maharashtra, 1979 (39)
FLR page 394. Section 5 does not valid the fundamental rights under
Article 19(1) (g) of the constitution. Vijay Cloth Cotton Mills V/s State of
Ajmer, AIR 1955, page 33, Supreme Court.
• In fixing the minimum wage:

The fact that an employer might find it difficult to carry on his business on
the basis of minimum wages is an irrelevant consideration. The Act
contemplates that minimum rates of wages must ensure not the physical
need of the worker which would keep him just above starvation but must
ensure for him not only his subsistence and that of his family but also
preserve the efficiency as a workman. In this way the hospital staff will feel
that the organization is recognizing their work and by given special
attention by the hospital management committee, the hard working
hospital staff will feel motivated. It should therefore, provide not merely for
his care subsistence of his life but for the preservation of the worker and so
must provide for some measure of education, medical requirement and
amenities. (AIR 1996, Supreme Court, Page 182 Hydro (Engineers) Pvt.
Ltd. V/s its workmen.)
• A casual hospital staff cannot by the very nature of his employment

expect the same rate of wages as is given to a permanent hospital staff.
(Workmen of Orient Paper Mills V/s Orient Paper Mills, AIR 1969,
Supreme Court, Page 976.)
• Section 11- Wages in Kind :
1. Minimum wages payable under the Act shall be in cash.
2. Where there has been the custom to pay wages only or partly in kind
like issuing of SODHEXO coupons, gift voucher, voucher payment for
entertainment, reimbursement for petrol etc, the Appropriate
Government is of the opinion that it is necessary in the circumstances
! !374
by a Notification in the Official Gazette to authorize the payment to be

either made in cash or wholly or partly in kind.
3. The Appropriate Government is of the opinion that provisions should be

made for the supply of essential commodities at concessional rates like
issue of monthly rations, issue of the house hold appliances, batteries,
and groceries items etc. The Appropriate Government may by the
notification in official Gazette authorize the provisions of such supplies
at concessional rate.
Where in respect of any scheduled employment, a notification under

Section 5 is in force, the employer shall pay to every employee engaged in
a scheduled employment under him, wages at the rate not less than the
minimum rates of wages fixed by such notification for that class of
employees in that employment without any deductions as may be, except
as may be authorize within such time and subject to the conditions.
However income tax applies as the tax brackets issued for different pay
packages issued by government of India.
• In regard to the scheduled employment, Minimum rates of wages in

respect have been fixed. The Appropriate Government may fix the
numbers of hours of work which shall constitute a normal working day
inclusive of specified intervals. Most of the health care organization fixes
the wages of its staff as per their routine working schedule as per terms
and conditions mentioned in the appointment letter. Most of the unskilled
hospital staffs and non executive hospital staffs are paid overtime for
extra duty hours worked by them where as executive cadre hospital
staffs are paid incentives for extra no of surgeries performed by
surgeons, extra LSCS done by gynecologist, extra CAG & PTCA done by
the cardiologist etc.
• It also shall provide for a day of rest in every period of seven days i.e.
weekly off for the hospital staffs which shall be allowed to all employees
or to any specified class of employees and for the payment of
remuneration in respect of such days of rest. It shall also provide for
payment of work on a day of rest at a rate not less than overtime rate
i.e. the hospital staffs are paid for weekend days at same rate as the
overtime. Overtime has been discuss under Section 14 of the Minimum
wages Act, where an employee whose minimum rates of wages is fixed
under this Act by the hour, by the day or by such a longer wage period as
! !375
may be prescribed and the employee works on any day in excess of the
number of hours constituting a normal working day, the employer shall
pay him for every hour or for part of hours worked in excess of the
overtime rate fixed under this Act or under any law of the Appropriate
Government for the time being in force, whichever is higher.
• In fact, employee whose minimum rates of wage has been fixed under
this Act by the day, works on any day on which he was employed for a
period less than the requisite number of hours constituting a normal
working day, he shall be entitled to receive wages in respect of work
done by him on that day as if he had worked for the full normal working
day.
• Every employer employing person shall maintain such registers and

records giving such particulars of employees employed by him, the work
performed by them, the wages paid to them, the receipts given to them
and such other particulars and forms. Usually in a health care
organization, whenever a new person is recruited, the hospital human
resource department sends the staff number and the name of the
employee to the pay roll section, a part of the hospital finance
department, on the receipt of the information, and then the salary of the
new recruited employee is released. The Appropriate Government may
provide for the issue of wages book or wage slip (attendance card) to
employees employed in the schedules employment in which minimum
rates of wages have been fixed and also may prescribe in the manner in
which the entries are to be made and shall be made in such wage books
i.e. the payment is made routine working hours and extra duty or
overtime duty done by the hospital staff.
• Inspectors :
The Government may appoint by an Official Notification persons it thinks fit

as Inspectors for the purposes of the Act and may also define the local
limits within which they have to function.
The functions of Inspectors appointed by the government as per the

recommendation of the minimum wages act 1948.
! !376
a. may examine any person whom he finds in such premises or place of

work which may be hospital & nursing home
b. May have a reason to believe that the person found in the hospital
premises, is an employer or an employee who works there
c. The Inspector may also cease or take copies of registers, record of

wages, notices or portion thereof as he may consider relevant in respect
of an offense
• Claims :
The persons authorized to settle all claims disputes arising out of the
payment of less than the minimum wages
a. Commissioner for Workmen's Compensation
b. Any officer of Central Government exercising functions as a labor

Commissioner
c. Any other officer with the experience of a Judge of the Civil Judge of
the Civil Court
The Authority to hear and decide for a specified area, all claims arising out
of the Authority to hear and decide for a specified area, all claims arising
out of the payment of less than the minimum wages. In respect of the
employees, any claim of the nature referred above, the employee himself
or through any Legal Practitioner or any official of a Registered Trade Union
with the permission of the authority, may apply to the authority for
directions. Provided that at least such application shall be made within a
period of six months from the date on which the minimum wages became
applicable and it can be admitted after a period of six months when the
Applicant satisfies the Authority that he had sufficient causes for not
making that application within the said period. The authority shall hear
applicant as well as employer and after giving them opportunity of being
heard and after such further enquiry, may consider necessary to impose
penalty on the employer if he is liable.
• In case a claim arising out of payment of less than the minimum rates of
wages, the payment to the employee of an amount which is less than the
! !377
minimum wages payable to the employee of an amount which is less

than the minimum wages payable to them exceeds the amount actually
paid together with the payment of such compensation as the authority
may think fit, not exceeding 10 times of the amount of excess. If the
Authority hearing that application is satisfied that it was either malicious,
vexations application made, it may direct penalty to the person
presenting such application against the employer.
• Penalties in respect of Certain Offenses :

Any employer who pays to an employee less than minimum rates of wages
fixed for the employees class of work and thinks to do so and contravenes
the provisions of the Minimum Wages Act shall be punishable with
imprisonment for six months or fine which shall not exceed Rs. 500/- or
both. For example if the general duty doctors is recruited @ Rs 200/hours,
and if the hospital authorities are not paying as per terms and conditions
mentioned in contract , and if such type of dispute is brought in the notice
of labor commissioner, then in such type of disputes a penalty can be
imposed on hospital authorities. Furthermore, the penalty for willfully
obstructing the Inspector in the exercise of any power conferred unto him
by the Act or fails to produce any demand made by the Inspector in
respect of wages of registers, records or documents in the custody of the
employer shall be punished with the fine which may extend to Rs. 500/- or
conviction.
• Part-time Workers :
In a hospital set up many workers are employed on part time basis. A part
time hospital worker is one who are employed for 4 hours and their total
emolument should not be more than 60% of total monthly of the full time
worker. Part time hospital employees include part time GDMO, part time
sonologist, part time pathologist, part time radiologist etc. Explanation:
for the purposes of this notification.
1. Competent Authority means the Competent Authority appointed by the

Government of Maharashtra, Industries, Energy and labor Department,
Notification No. MWA 5284/ 5819/Lab.7, dated the 3rd August, 1984.
2. Zone System :
a. Zone-I shall comprise of the areas within the limits of all Municipal
Corporations, and adjoining cantonment areas (if any).
! !378
b. Zone-II shall comprise the areas with the limits of all "A" Class
Municipal Council and adjoining cantonment areas (if any).
c. Zone-III shall comprise rest of the areas of the State (excluding areas
in Zone I and II).
3. In cases where the employee is employed on a basis other than monthly

basis, the minimum rates of daily wages payable shall be computed by
diving the minimum rate of monthly wages fixed for the category of the
employees to which he belongs by 26, the portion being stepped up to
the nearest paisa. For example in a hospital set up there are many
category of the employee, some of them working on fixed term contract
while other working as daily waged employees. So the payment of daily
waged employees is calculated by dividing total monthly wages of the
employee / 26.
4. The minimum rates of wages shall consist of all inclusive rates allowing
for the basic rate, the cost of living allowance and cash value of
concession, if any. ‘
5. The cost of living allowance computed as aforesaid shall be declared by

the competent authority by Notification in the Official Gazette, in the
last week of July when allowance is payable for each of the months of
July to December and last week of January when such allowance is
payable for each of the months of January to June.
• Provided that the Competent Authority shall declare the cost of living
allowance payable in respect of the period from the date of revision of
the rates of minimum wages to the end of June or December as the
case may be immediately after the said date, with effect from which
the Minimum rates of wages are revised.
! !379
7.1.4. Employment in Any Hospital:
14 March, 1996
First Schedule
Basic Rate per Month
I Class of Employees Zone-I Zone- Zone
Rs. II Rs. -III
Rs.
Supervisory and High Skilled 1,068.00 996.00 925.00
(a)Matron and Residential Medical Officer (full time) Assistant

Matron, Sister, Tutor, Public Health Nurse, Steno -typist (full
time)
(b) Employee by whatever name called doing the work of

highly skilled nature as one by persons falling under the
foregoing class of employee.
II Skilled 925.00 854.00 783.00

Qualified Sisters, therapists, Nurses, Mid -wives,
Compounders, Graduate paramedical staff such as Laboratory
Technicians, X-ray Technicians, Graduate office staff such as
Accounts, Cashiers, Store -Keepers, Clerks, Typists (provided
such Nurses Mid -wives, Laboratory and Compounders hold
Diploma or certificate recognized by any State Government of
Central Government). Employees by whatever names called
doing the work of skilled nature done by person falling under
the foregoing classes of employees.
III Semi-skilled 818.00 747.00 676.00

Untrained Nurses (nursing student), Untrained X-ray
Technicians, Untrained Laboratory Technicians, Untrained
physiotherapists (having experience of not less than 5 years).
Electricians, Receptionists, Plumbers, Telephone Operators,
Linen -keeper, Cooks, Drivers, Under Graduate Typist (having
experience of not less than 2 years). Auxiliary Nurses,
Dressers, Dais. Employees by whatever name called doing
work of semi -skilled nature as done by persons falling under
the foregoing categories of employees.
IV Unskilled 715.00 640.00 570.00

Sweeper, watchman, ward -boys, peons, X -ray Boy,
Laboratory Boy, Dental Boy, Laundry Boy, Ayas, Helpers,
Kitchen servants, Kitchen servers, Mail, Bill collectors,
Barbers. Employees by whatever name called doing work of
Unskilled nature done by persons categories of employees.
V Persons below the age of 18 years employed in any of the

classes of employees for adult for adult mentioned above in
his column.
! !380
Zone I 80 percent of the rate fixed in respect of same employees
Zone II 80 percent of the rate fixed in respect of same employees
Zone III 80 percent of the rate fixed in respect of same employees
Explanation -
I. 5 percent of the minimum wages (including special allowance) should be

deducted from the wages in respect of those who have been provided
with rent free quarters. i.e. hospital employees who have been provided
rent free accommodation with in the hospital campus.
II. The rates as specified in column 3 of Schedule III shall be the cash
value of wages in kind to be cut by the employer.
III.The Minimum rates of wages shall consist of basic rates and special
allowance will be determined in accordance with the provisions of clause
(i) of sub-section (1) of section 4 of the said act and the special
allowance so determined as per Appendix, shall be payable to the
employees along with the basic wages.
7.2 PAYMENT OF WAGES ACT, 1936:
The Payment of Wages Act was passed in 1936. The objective of The
Payment of WagesAct 1936 is
a. To ensure regular and timely payment of wages to the employed

persons
b. To prevent unauthorized deductions being made from wages
c. To prevent arbitrary fines being imposed on the employed persons
! !381
7.2.1. DEFINITIONS:
Employed Person [Sec.2(i)]:
"Employed Person" includes the legal representative of a deceased

employed person. (This definition makes it possible for the legal
representatives of a deceased employed person to prefer a claim relating
to non-payment of wages or any unauthorized deductions there from).
Employer [Sec. 2 (ia)]:
"Employer" includes the legal representative of a deceased employer. After

the death of employer, his legal representative can be held liable for the
payment of wages due to employed persons. The liability of the legal
representative is limited to the extent of the value of the estate inherited
by him.
Wages [Sec.2(vi)]:
'Wages' means all remuneration (whether by way of salary, allowances

such as city compensatory allowances, HRA, NPA or non-monetary benefit)
expressed in terms of money or capable of being so expressed which
would, if the terms of employment, express or implied, were fulfilled, be
payable to a person employed in respect of his employment or of work
done in such employment. Simply stated, 'wages' means all remuneration
due to any worker or employee if the terms of contract of employment are
fulfilled.
7.2.2. RULES FOR PAYMENT OF WAGES:
• Responsibility for Payment of Wages (Sec.3):
Every employer whether he is the owner of nursing homes, private

hospitals, health care organization, shall be responsible for the payment to
persons employed by him of all wages required to be paid under the
Payment of Wages Act payment of wages under the Act:
a. In factories, the person named as manger;

b. In industrial or other establishments, the person involved with
supervisory work
! !382
c. Upon railways (otherwise than in factories), the person nominated by

the railway administration.
• Fixation of Wage Periods (Sec.4) :

Every person responsible for the payment of wages under Sec. 3 shall fix
periods, known as wage-periods, in respect of which such wages shall be
payable. A wage-period shall not exceed one month [Sec.4 (2)]. In other
words, payment of wages can be made daily, weekly, fortnightly or
monthly. So in the appointment letter, payment of the hospital employees
cannot exceeds beyond monthly payment schedule.
• Time for Payment of Wages (Sec.5):
The rules relating to time of payment of wages are as follows:
1. Wages to be paid before 7th or 10th day. The wages of every person
employed upon or in any railway, factory or industrial or other
establishment upon or in which less than 1,000 persons are employed,
shall be paid before the expiry of 7th day of the following wage-period.
In case the number of workers exceeds 1,000 the wages shall be paid
before the expiry of the 10th day of the following wage-period. So if it is
the corporate hospitals with less than 1000 person on the pay roll, then
monthly payment of its employees should be made before expiry of 7th
of the following wage period and where the strength of employees are
more than 1000, then the payment must be made before expiry 10th of
the following wage period.
2. Wages in case of termination of employment. Where the employment of

any person working in a hospital set up or in any health care
organization is terminated by or on behalf of the employer i.e. owner of
the hospital or the trustee of the hospital, the wages earned by him
shall be paid before the expiry of the 2nd working day from the day on
which his employment is terminated [Sec.5 (2)]. Where the
employment of any person in an establishment i.e. hospital set up or in
any health care organization is terminated due to the closure of the
establishment for any reason other than a weekly or other recognized
holiday, the wages earned by him shall be paid before the expiry of the
2nd day from the day on which his employment is so terminated.
! !383
3. Exemption: The State Government may, by general or special order,

exempt the person responsible for the payment of wages from the
operation of the above provisions in certain cases [Sec.5 (3)].
4. Wages to be paid on a working day. All payment of wages shall be made

on a working day [Sec.5 (4)]. So wages of the hospital employees
cannot be paid on Sunday.
• Medium of Payment of Wages (Sec.6):
All wages shall be paid in current coin or currency notes or both (Sec.6).
Payment of wages in kind is not permitted. According to Sec.6 of the Act,
the employer may after obtaining the written authorization of the
employed person, pay him the wages either by cheque or by crediting
the wages in his bank account which is given by the hospital employees.
7.2.3. Deductions from wages:
The deductions from wages of an employed person referred to in Sec. 7(1)

may be of the following kinds only, namely:
1. Deductions for Fines [Sec. 7(2)(a) and 8]:

Fines can be deducted which are imposed on any employed person for such
acts and omissions on the part of the employed person, which the
employer may have specified by a notice with the approval of the State
Government. For examples fines are deducted for gross negligence of
hospital staffs, which is committed by them while on duty , for examples
due to gross negligence of ICCU staff, suction machines becomes
irreparable and some amount monetary deduction is made from salary of
ICCU staff nurses.
2. Deductions for Absence from Duty [Secs.7(2)(b) and 9]:

Deductions may be made on account of absence of an employed person
from duty from the place or places where, by the terms of his employment,
he is required to work. The absence may be for the whole or any part of
the period during which he is so required to work. But the ratio between
the amount of such deductions and the waged payable shall not exceed the
ratio between the period of absence and total period within such wage-
period. For example the hospital staff is on unauthorized absent from his
duty, so medical superintendent can pass order for the deduction of some
! !384
amount salary from that particular staff's monthly wages. Or the case of
LWP- leaves without pay.
3. Deductions for Damage or Loss [Secs.7(2)(c),(m),(n) and (o)

and 10)] :
A deduction for damage or loss should not exceed the amount of the
damage or loss caused to the employer by the neglect or default of the
employed person. For example the cost of bladder wash syringes, which is
broken the ward sister, is Rs 200, then the medical superintendent cannot
pass an order for the deduction of Rs 400, as it will be more than the
actual cost of that particular syringe.
4. Deductions for Services [Secs.7(2)(d), (e) and 11)]:
A deduction for house accommodation and such amenities and services

supplied by the employer as have been authorized by the State
Government. So if the accommodation is provided to a hospital employee,
then the deduction component will be license fees for the accommodation,
electricity surcharge, bill for water surcharge etc.
5. Deductions for Recovery of Advances [Secs.7(2)(f) and 12]:
Recovery of advances of money given before employment and after

employment shall be deducted as per the conditions of the State
Government. Deductions for adjustment of over- payment of wages can
also be made. These deductions includes
1. Deduction for festival advances

2. Deductions for house building advances
3. Deduction for advances taken from LIC
4. Deductions for car purchase advances
5. Deductions for computer advances etc
6. Deductions for Recovery of Loans [Secs. 7(2)(fff) and 12-A]:
Deductions for loans granted for house-building or other purposes and the
interest due in respect thereof shall be subject to any rules made by the
State Government may also be made. Loans are issued by department or
private or nationalized banks.
! !385
7. Deductions for Payments to Co-operative Societies and

Insurance Schemes [Secs.7(2)(f) and (k) and 13]:
These deductions shall include the deductions for payments to co-

operatives societies and to a scheme if insurance. Like deductions can be
employees linked insurance scheme, deductions for the employee linked
health insurance like deductions for med claims, ICICI Lombard, etc.
8. Other Deductions :
1. Deductions of income-tax payable by the employed person.
2. Deductions required to be made by order of a Court or other competent

authority.
3. Deductions for payments to co-operative societies.
4. Deductions of advances from any provident fund- such as CPF, VPF, GPF
etc.
5. Deductions for payment of premium for health Insurance.
6. Deductions, with the authorization of the employee for contribution to

the Prime Minister's National Relief Fund; or to such other Fund as may
be specified by the Central Government, for which the person who gives
donations, gets income tax rebate, under 80C.
Limit on Deductions:
The total amount of deductions which may be made under the above heads
in a wage-period from the wages of any employed person shall not exceed
75 per cent of wages. For example maximum deduction in VPF
components, cannot more than one basic for one particular month.
! !386
7.2.4. MAINTENANCE OF REGISTERS AND RECORDS (sec.13-A):
Every employer whether government or private hospital & nursing homes

shall maintain registers and records giving the following particulars of the
persons employed by him:
• the work performed by them i.e. duty roster of the various categories of
the hospital employees
• the wages paid to them- usually maintained by the pay roll sections in a
hospital premises
• The deductions made from their wages- PF sections -under finance

department, leave section usually under time office which is under
personnel department, income tax deduction under finance department
etc.
• The receipts given by them like salary payment receipt, medical

reimbursement receipt, fuel bill payment receipt, receipt for
reimbursement of telephone bills etc.
The registers and record shall be in such form as may be prescribed. They
shall be preserved for a period of 3 years after the date of the last entry
made therein [Sec. 13- A (2)].
7.2.5. Penalty for Offences under the Act (Sec.20):
• Penalty for not paying on time - like payment of the monthly

salary of the hospital employee.
Penalty can be imposed for delaying payment of wages within the

prescribed period or making unauthorized deductions. Whoever being
responsible for the payment of wages to an employed person delays
payment of wages within the period laid down under the Act or makes
unauthorized deductions shall be punishable with fine which shall not be
less than Rs. 200 but which may extend Rs. 1,000 [Sec.20(1)].
• Penalty for not paying wages on a working day or in current coin

or not recording fines or not displaying the abstracts of the Act.
! !387
Not paying the wages on a working day, or not paying wages in current
coin or currency or both, or not recording the fines or amounts realized
for damage or loss in a register, or not displaying by notice abstracts of
the Act and rules, are also offences punishable with a fine which may
extend to Rs. 500 for each offence [Sec.20 (2)].
• Penalty for failure to maintain, furnish records and returns. Whoever

being required under the Act to maintain any records or registers or to
furnish any information or return shall, for each such offence, be
punishable with fine which shall not be less than Rs. 200 but which may
extend to Rs. 1,000.
7.3 PAYMENT OF BONUS ACT, 1965:
7.3.1. Introduction: - The Payment of Bonus Act came into force in 1965.
The Payment of Bonus Act came into force in 1965 with the objective:
a. To maintain peace between labor and capital

b. To maintain harmony between labor and capital
c. By allowing the employees, in recognition of their right
d. To share in the prosperity of the establishment
The term "bonus" is not defined in the Payment of Bonus Act, 1965,
Webster's International Dictionary, defined bonus as "Something given in
additions to what is ordinary received by or strictly due to the recipient".
The scheme of the Act is three-dimensional:
1. To define the principle of payment of bonus according to the prescribed

formula;
2. To provide for payment of minimum and maximum bonus and linking

the payment of bonus with the scheme of 'set-off and set-on' and
3. To provide machinery for enforcement of the liability for payment of

bonus.
• The following fact regarding bonus, as per payment of bonus act 1965 is
correct
! !388
a. A minimum bonus of 8.33 per cent of the wage or salary of an

employee
b. Bonus is payable irrespective of the fact whether the establishment

has made a profit or loss
c. Bonus is no longer linked with production and profitability
d. Bonus is not a contingent liability
7.3.2. DEFINITIONS:
A. Allocable Surplus [Sec.2 (4)]:
It means -
a. In relation to an employer, being a company (other than a banking

company) which has not made the arrangements prescribed under the
Income-tax Act, 1961 for the declaration and payment within India of
the dividends payable out of its profits in accordance with the provisions
of Sec. 194 of the Income-tax Act, 1961, 67 per cent of the available
surplus in an accounting year. According to the Income-tax Act, 1961 …
per cent of the available surplus, which a corporate hospital makes,
must be shared with its employees as per the payments of wages act
1965.
b. In any other case, 60 per cent of the available surplus.
The allocable surplus is the workers' share in the available surplus as

defined in Sec. 2(6).
C. Available Surplus [Sec.2 (6)]:
It means the available surplus computed under Sec. 5.
The other relevant Sections which deal with calculation of available surplus
are Sec.4, 6 and 7.
Under Sec. 4 gross profits are to be deducted in the manner specified in

the First and Second Schedules.
! !389
According to Sec.6 the sums to be deducted from the gross profit as

priority charges are any amount of depreciation, any amount by way of any
direct tax calculated according to the provisions of Sec.7 and other sums
mentioned in the Third Schedule.
D. Salary or Wage [Sec.2 (2)]:
It means all remuneration (other than remuneration in respect of overtime

work) capable of being expressed in terms of money, which would, if the
terms of employment, express or implied, were would, if the terms of
employment, express or implied, were fulfilled, be payable to an employee
in respect of his employment or of work done in such employment. It
includes dearness allowance (i.e., all such payments, by whatever name
called, paid to an employee on account of rise in the cost of living), house
rent allowances, non-practicing allowance, city compensatory allowance,
petrol allowance etc.
E. ELIGIBILITY FOR BONUS (SEC.8):
Every hospital employee shall be entitled to be paid by hospital owner or

trustee in an accounting year, a bonus, in accordance with the provision of
the Act, provided he has worked in the establishment for not less than 30
working days in that year (sec.8). Where an employee has not worked for
all the working days in any accounting year, the bonus payable to him
under Sec. 10 shall be proportionately reduced (Sec.13). So the minimum
number of days, a hospital employee has to work, in order to get bonus, as
per the provisions of the payment of bonus act 1965 is 30 days.
7.3.3 DETERMINATION OF BONUS :
The Act has laid down a detailed procedure for calculating the amount of
bonus payable to employees. First of all, Gross Profit is calculated as per
First or Second Schedule. From his Gross Profit, the sums deductible under
Section 6 are deducted. To this figure, we add the sum equal to the
difference between the direct tax calculated on gross profit for the previous
year and direct tax calculated on gross profit arrived at after deducting the
bonus paid or payable to the employees. The figure so arrived will be the
"available surplus". Of this surplus, 67% in case of company (other than a
banking company) and 60% in other case shall be the "allocable surplus"
! !390
which is the amount available for payment of bonus to employees. The

details of such calculations are given below. . Thus the amount which is
available for payment of bonus to hospital employees by the owner of that
particular hospital is known as Allocable surplus.
I. Computation of Gross Profit (Sec.4):
• The computation of gross profits for an accounting year for the purpose
of the bonus formula is the first step. It is calculated according to Sec.4
of the Act.
• The starting point in the computation of the gross profits is the net profit
as shown in the Profit and Loss Account after making usual and
necessary provisions.
II.Determination of Available Surplus (Sec.5):
The next step, after the determination of gross profits in the manner
discussed above, is the determination of available surplus. The available
surplus in respect of any accounting year shall be the gross profits for that
year after deducting there from the sums referred to in Sec.6.
• The amount which remains after deducting the above sums (known as
prior charges) from gross profits is the 'available surplus' for distribution
as 'bonus'.
• Of this available surplus, 67% in case of company and 60% in other

cases shall be the "allocable surplus" which is the amount available for
payment of bonus to employees.
• So the final calculation of event in order to give bonus as per payment of

bonus act 1965 is Calculation of gross profits 'calculation net profit
'calculation of the available surplus 'calculation of allocable surplus
! !391
ALLOCABLE SURPLUS:
After determining the 'available surpluses, the employees' share known as

'allocable surplus' is to be determined. The allocable surplus is the workers'
share in the available surplus. The rules to be followed for its distribution
are as follows:
1. Amount of Bonus :
The bonus formula as envisaged in the Act provides for the payment of
minimum and maximum bonus to the employees in an accounting year.
a. Minimum Bonus (Sec.10): A minimum bonus is 8.33 per cent of the

salary or wage earned by the employee during the accounting year or
Rs.100 whichever is higher. Even if the employer suffers losses during
the accounting year, he is bound to pay minimum bonus as prescribed
by Sec.10.
b. Maximum Bonus (Sec.11): Bonus at a rate higher than the minimum

rate is payable only when the allocable surplus in a particular accounting
year exceeds the amount of minimum bonus payable to the employees.
In such case the employer shall be bound to pay to every employee in
the accounting year bonus which shall be an amount in proportion to
the salary or wage earned by the employee during the accounting year
subject to a maximum of 20 per cent of such salary or wage.
In computing the allocable surplus under Sec.11, the amount 'set on' or
'set off' under the provisions of Sec.15 shall be taken into account in
accordance with the provisions of the Section.
2. Calculation of bonus with respect to certain employees (Sec.12):

Where the salary or wage of an employee exceeds Rs. 1,600 per month,
the bonus payable to such employee under Sec.10 or, as the case may be
under Sec.11, will be calculated as if his salary or wage were Rs. 1,600 per
months.
! !392
3. 'Set on' and 'Set off' allocable surplus (Sec.15):
The allocable surplus for the payment of bonus for the relevant accounting
year is arrayed at after taking into account the figures of 'set on' and 'set
off' in the previous year. The rules relating to 'set on' and 'set off' of the
allocable surplus are as under:
1. Set on: Where the allocable surplus for any accounting year exceeds
the amount of maximum bonus payable to the employees in the
establishment under Sec.11, then the excess of allocable surplus,
subject to a limit of 20 per cent of the total salary or wage of the
employees employed in the establishment in that accounting year, shall
be carried forward for being set on to the succeeding accounting year
and so on up to and inclusive of the fourth coming year.
This excess amount which is carried forward shall be utilized for the
purpose of payment of bonus in the manner illustrated in the Fourth
Schedule.
2. Set off : Where for any accounting year, there is no allocable surplus or
the allocable surplus in respect of that year falls short of the amount of
minimum bonus payable to the employees in the establishment under
Sec.10, and there is no amount or sufficient amount carried forward and
set on which could be utilized for the purpose of payment of the
minimum bonus, then such minimum amount or the deficiency, as the
case may be, shall be carried forward for being set off in the succeeding
accounting year and so on up to and inclusive of the fourth accounting
year in the manner illustrated in the Fourth Schedule.
The Fourth Schedule illustrates the method of calculation of allocable

surplus, its distribution and set off or set on of the amount available out
of it.
! !393
THE FOURTH SCHEDULE
(See Secs.15 and 16)
In this Schedule the total amount of bonus equal to 8.33 percent of the
annual salary or wage payable to all employees is assumed to be Rs. 1,
04,167. Accordingly the maximum bonus to which all the employees are
entitled to be paid (20 per cent of the annual salary or wage of all the
employees) would be Rs. 2, 50,000.
4. Time limit for payment of bonus (Sec. 19) :
All amounts payable to a hospital employee by way of bonus under the Act
shall be paid in cash by this employer i.e. owner of the hospital, within a
period of 8 months from the close of the accounting year.
! !394
7.3.4. Payment of bonus by doing case study and discussing the

issues related to different category of workers.
7.3 4.1. Whether Bonus is payable on back-wages?
A: On this issue the High Court's differed in their opinion. As per the
decision of the Madras High Court the case of Bonus is based on the
principles of Labor and Management jointly contributing to the earning of
profit. But when the workers had not been actually in service and have
made to contribution to profit, the employees will not be entitled to Bonus.
Rangarathinam Pillai v. Labour Court, Coimbatore, 1969 II LLJ 416 (Mad.).
7.3.4.2 Whether bonus is payable to Apprentices, Probationers,

Part Time Employees and on Commission paid to employees?
• The definition of Employee u/s. 2(13) of the Payment of Bonus Act, 1965
only excludes from the scope of the term "employee" an apprentice.
Therefore apprentice shall not be eligible for bonus but probationer and
part time employee shall be eligible for bonus under the Payment of
Bonus Act, 1965.
• Secretary Bank of Madura Ltd. v. General Secretary, Bank of

Madura Employees Union, Coimbatore & Anr. 1970 II LLJ 91
(Mad. H.C.).
All India Voltas and Volkart Employee's Federation, Bombay v. Mis.

Voltas Ltd. & Anr. 1972 I LLJ 326 (Bom.H.C.).
All India Voltas & Volkart Employees' Federation v. Voltas Ltd.

1972 I LLJ 326 (Bom. H.C.).
7.3.4.3 PRODUCTION BONUS - IF CAN BE CLAIMED BY SALES

STAFF:
The workers of our company who are employed in the factory are
represented by a Union which is in existence for the last 15 years. There is
an elaborate Bonus Scheme under which the workers engaged in
production are entitled to Production Bonus as per the terms of the
Scheme which in turn is a part of the Settlement signed with the Union. In
the factory there also exists a sales office and since Production Bonus has
! !395
always been paid to the workers engaged in production, the staff members
of the sales department were never paid Production Bonus. The staff
members who are members of another Union this time have put up a
demand for Production Bonus. The management resisted their claim mainly
on the ground that they being not engaged in production, how they can
demand Production Bonus which is meant exclusively for the workers
engaged in production.
• Sales Staff justified in demanding Production Bonus meant for the

workers engaged in production?
• Yes, honorable court judgment
• It is equally true that just as a man who makes an article by using

different materials in such a way as to make them more suitable to
satisfy people's wants is engaged in production labor. So also is the
person or persons who help in the ultimate achievement of satisfaction of
those wants by bringing them to the consumers' reach. Therefore, it
would be unreasonable to say that those who make a product are
producing but those who sell them are not. Hence Sales Staff is justified
in their demand for getting the benefit of Bonus.
Western India Match Co. Ltd. v. Their Workmen AI R 1964 SC 472.
PRODUCTION BONUS - IF CAN BE CLAIMED BY SALES STAFF:
We had set up a factory in the accounting Year 1988-89. The factory

started commercial production in the accounting Year 1989-90. Up to
accounting Year 1990-91, the company has been incurring losses. In the
accounting Year 1991-92, the company has made profits. However if the
arrears of losses incurred in the previous accounting Years are set off,
there remains no profit in the accounting Year 1991-92.
• How to arrive at profit during first five years?
A.: Your company is not liable to pay Bonus for the accounting Year
1991-92. Because as per the provisions of S. 16 (1-A) of the Payment of
Bonus act, 196.5, your company which has started commercial production
in the accounting Year 1989-90, in the first five accounting Years following
the accounting Year 1989-90 shall be liable to pay bonus only in respect of
! !396
the accounting Year in which it devices profit. Although your company in

the accounting Year 1991-92 made profits but when the previous losses
are set off, there remains no profit. The previous losses are permissible to
set off as per explanation 11 (b) to S. 16 of the Payment of Bonus Act,
1965.
7.3.4.4. SETTLEMENT PROVIDING BONUS MORE THAN THE

MAXIMUM PROVIDED UNDER THE PAYMENT OF BONUS ACT, 1965 -
IF VALID.
A public limited company was paying bonus under the Settlement. This
time when our Union that bonus henceforth will be productivity linked and
involved our Union in arriving at productivity norms for the purpose of
fixing the quantum of bonus but no norms could be fixed because of
difference of opinion in respect of standardization of the norms. If the
norms which the Union suggested could be accepted by the management,
bonus would have been fixed @ 22% to 25% depending upon the slabs.
The Union suggested that for one year the management should enter into a
settlement for payment of bonus @ 23% and, in the meanwhile, further
study of the norms will be carried out and on the basis of finalization of the
study, the quantum of bonus for the remaining 2 years will be fixed. After
prolonged negotiations the management principally agreed subject to
seeking legal advice. Now the management has come with the plea that
they have been advised that they cannot enter into a settlement for
payment of bonus at a rate more than the maximum provided under the
Act because of S. 34 of the Payment of Bonus Act.
• Whether bonus more than the maximum bonus contemplated

under the Payment of Bonus Act, 1965, can be paid to the
workers under a settlement?
A. As per the ratio of decision of Division Bench of Bombay High Court, S.

34 of the Payment of Bonus Act, 1965, which provides the effects of
laws and agreements inconsistent with the Act and further provides that
the provisions of the Payment of Bonus Act, 1965, shall have effect
notwithstanding anything inconsistent therewith contained in any other
law for the time being in force or in the terms of any Award, Agreement,
Settlement or contract of service. The Division Bench, while interpreting
the provisions of S.34 of the Act opined that S.34 does not prevent
employers from paying to the employees anything not covered or
! !397
contemplated by the Act. Obviously, the above situation is neither

contemplated nor covered by the Act and, applying the ratio of the
above decision of the Division Bench, there may be nothing illegal in
making payment of bonus @ 23% to the employees under a settlement.
Petroleum Employees' Union v. Industrial Court Maharashtra,

Bombay & Anr. 1981 MLJ 316 (Bom. H.C.)
The payment of Bonus Act, 1965
7.3.4.5. BONUS : CONTRACT EMPLOYEE IF CAN DEMAND FROM

PRINCIPAL EMPLOYER :
• Can contract employee legally demand Bonus from the principal

employer?
• The principal employer's liability to pay the wages to the workmen

engaged in the canteen on contractor's failure to pay the wages is
recognized in Sec. 21 (4) of the Contract Labour (Regulation & Abolition)
Act, 1970. The wages due to the contract workmen does not include
Bonus and Gratuity. This is made clear by the definition of wages in the
Industrial Disputes Act and Payment of wages Act. Therefore, the
principal employer is not liable to pay Bonus to the contract workmen.
Cominco Binani Zinc Ltd. V. Pappachan, 1989 I CLR 151 = 1989 I

LLJ 452 (Kere. H. C.)
7.3.4.6. BONUS - IF PAYABLE ON BACKWAGES.
Q:Whether Bonus is payable on back-wages?
• On this issue the High Court's differed in their opinion. As per the
decision of the Madras High Court the case of Bonus is based on the
principles of Labor and Management jointly contributing to the earning of
profit. But when the workers had not been actually in service and have
made no contribution to profit, the employees will not be entitled to
Bonus.
! !398
Rangarathinam Pilli v. Labour Court, Coimbatore, 1969 II LLJ 416

(Mad.).
Secretary Bank of Madura Ltd. V. General Secretary, Bank of

Madura Employees Union, Coimbatore & Anr. 1970 II LLJ 91 (Mad.
H.C.).
All India Voltas and Volkarte Employees' Federation, Bombay v.

Mis. Voltas Ltd. & Anr. 1972 I LLJ 326 (Bom. H.C.).
7.3.4.8 BONUS: SALESMAN IF ENTITLED TO:
• Whether salesmen are entitled to Bonus under Payment of Bonus

Act, 1965?
A: Under the Payment of Bonus Act, 1965 only those persons who are
employee within the meaning of S.2 (13) of the Payment of Bonus Act are
entitled to Bonus under the Act. Salesman do not fall under any of the
categories enumerated u/s. 2(13) of the Act and therefore as per the
decision of Bombay High Court in the case of Voltas Ltd. Salesman are not
entitled to Bonus. All India Voltas & Volkart Employees' Federation
v. Voltas Ltd. 1972 I LLJ 326 (BOm. H.C.).  
! !399
Summary:
The Minimum Wages Act, 1948 - This is an Act to provide for fixing
minimum rate of wages in certain employments. This Act extends to the
whole of India except for the State of Jammu and Kashmir. Minimum rated
of wages may be fixed by one or more of the following wage period namely
by the hours, by the day, by the month. Under section-4 of the said Act, it
is a definite indication that the basic wage is an integral part of the
minimum wage. Section 4 (1) postulates that the minimum rate fixed or
revised by the Appropriate Government under Section 3 may constitute a
basic rate of wages and a special allowance at the rate to be adjusted at
such intervals, and in such manner, as the appropriate Government may
direct toe afford as merely as practical, with the variation in the cost of
living index number applicable to such employees.
Payment of wages act, 1936 - The Payment of Wages Act was passed in
1936. The objective of this Act is to ensure regular and timely payment of
wages to the employed persons, to prevent unauthorized deductions being
made from wages and arbitrary fines being imposed on the employed
persons.
Payment of bonus act, 1965: The Payment of Bonus Act came into force
in 1965. Its object is to maintain peace and harmony between labour and
capital by allowing the employees, in recognition of their right, to share in
the prosperity of the establishment.
The term "bonus" is not defined in the Payment of Bonus Act, 1965,
Webster's International Dictionary, defined bonus as "Something given in
additions to what is ordinary received by or strictly due to the recipient”.
Every employee shall be entitled to be paid by this employer in an

accounting year, bonus, in accordance with the provision of the Act,
provided he has worked in the establishment for not less than 30 working
days in that year (sec.8). Where an employee has not worked for all the
working days in any accounting year, the bonus payable to him under Sec.
10 shall be proportionately reduced (Sec.13).
! !400
Review Questions:
1. Explain the methodology for fixing of Minimum Rate of Wages under

minimum wages act 1948
2. What is the rules for payment of wages under payment of wages act,
1936
3. What is the difference between Allocable Surplus and Available Surplus
4. What is the eligibility criteria for getting bonus? How the bonus amount
is calculated 
! !401
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
Video Lecture
! !402
LABOR LAWS APPLICABLE TO HEALTH CARE INSTITUTIONS – PART ‘C’
Chapter 8
Labor laws applicable to Health care
Institutions – Part ‘C’
8.0 Labor laws applicable to Health care Institutions – Part ‘C’
8.1 Factories Act, 1948

8.1.1 Definitions
8.1.2 The inspecting staff
8.1.3 Certifying Surgeons
8.1.4 Heath, safety and welfare measures
8.1.5 Safety
8.1.6 Welfare
8.1.7 Working hours of adults
8.1.8 Annual Leave with wages
8.1.8.1 Rules relating to Annual Leave with Wages
8.1.8.2 Wages during Leave Period
8.2 Workmen’s Compensation Act, 1923

8.2.1 Introduction
8.2.2 Distribution of Compensation
8.2.3 Schedule IV
8.2.4 Social Security Scheme
8.3 Industrial dispute Act , 1947

8.3.1 Definition
8.3.2 procedure for settlement of industrial disputes
8.4 Trade Union Act, 1926

8.4.1 Definition
8.4.2 Registration of Trade Unions
8.4.3 Rules of Trade Union (Sec.6)
8.4.4 Registration (Sec.8)
8.4.5 Rights and privileges of a trade union
8.4.6 Funds of a Registered Trade Union
8.4.7 Dissolution of trade union
! !403
8.0 LABOUR LAWS APPLICABLE TO HOSPITALS-Part ‘C’
8.1 FACTORIES ACT, 1948:
The factories Act, 1948 came into force on the 1st day of April, 1949. Its
object is to regularize the conditions of work in manufacturing
establishments which come within the definition of the term’ factory’s used
in the Act.
8.1.1. DEFINITIONS:
a. Factory [Sec.2 (m)]: ‘Factory’ means any premises including the

precincts thereof-
i. Whereon 10 or more workers are working or were working on any day

of the preceding 12 months, and in any part of which a manufacturing
process is being carried on with the aid of power, or is ordinary so
carried on.
ii. Whereon 20 or more workers are working or were working on any day
of the preceding 12 months, and in any part of which a manufacturing
process is being carried on without the aid of power, or is ordinary so
carried on.
In simple words, a factory is a premise whereon 10 or more persons are

engaged if power is used, or 20 or more persons are engaged if power is
not used, in a manufacturing process.
b. Worker [Sec.2 (1)]:
A worker means a person’s employed, directly or by or through any agency

(including a contractor) with or without the knowledge of the principal
employer, whether for remuneration or not, in any manufacturing process,
or in any other kind or work incidental to, or connected with, the
manufacturing process or the subject of the manufacturing process but
does not include any member of the armed forces of the Union. Hospital is
also an organization, employing different categories of health care
professionals which may be medical & paramedical staff.
! !404
Adult [Sec.2 (a)]: An ‘adult’ means persons who have completed his 18th
year of age. Therefore an efficient hospital administrator must recruit its
employee, who is above 18 years of age.
Adolescent [Sec.2 (b)]: An ‘adolescent’ means a person who has

completed his 15th year of age.
Child [Sec.2(c)]: A ‘child’ means a person who has not completed his
15th year of age.
Young Person [Sec. (d)]: A ‘young person’ means a person who is either
a child or an adolescent.
Day [Sec. (3)]: It means a period of hours beginning at midnight.
Week [Sec.2 (f)]: It means a period of 7 days beginning at midnight on

Saturday night or such other night as may be approved in writing for a
particular area by the Chief Inspector of Factories.
Occupier [Sec.2 (n)]: ‘Occupier’ of a factory means the person who has
ultimate control over the affairs of the factory.
• In the case of a firm or other association of individuals, any one of the

partners or members thereof shall be deemed to be the occupier.
• In the case of a company, the directors shall be deemed to be the

occupier.
• In the case of a factory owned or controlled by the Central Government

or State Government or any local authority, the persons appointed to
manage the affairs of the factory by the Central Government, the State
Government or the local authority, as the case may be, shall be deemed
to be the occupier. For example in the case AIIMS, the owner is central
government, in the case state government run medical college and
hospital, the owner is the state government.
! !405
8.1.2. THE INSPECTING STAFF:
a. Inspectors (Sec.8):
• As per this section, the State Government may, by notification in the

Official Gazette, appoint any person to be a Chief Inspector to exercise
the powers conferred on him by the Factories Act. The State Government
may also appoint as many Additional Chief Inspectors, Joint Chief
Inspectors, Deputy Chief Inspectors, and as many other officers as it
thinks fit, to assist the Chief Inspectors and to exercise such of the
powers of the Chief Inspector as may be specified in the notification
[Sec.8(2-A)]. These officers are public servants and are governed by the
respective state government.
• Every District Magistrate shall be an Inspector for his district. The State
Government may appoint certain public officer, to be the Additional
Inspectors for certain areas assigned to them [Sec.8 (5)]. For example in
cases of district civil hospital, although the medical superintendent heads
it but in the cases of management of disaster, the district collectors
becomes the head of the hospital an civil hospital becomes remote centre
and the control centers for disaster mitigation, especially in the cases of
offsite medical emergency plan.
• Inspector appointed under the Act is an Inspector for all purposes of this
Act. Assignment of local area to an Inspector is within the discretion of
the State Government.
• A Chief Inspector is appointed for the whole State. He shall in addition to

the powers conferred on a Chief Inspector under this Act, exercise the
powers of an Inspector throughout the State. Therefore, if a Chief
Inspector files a complaint, the court can legally take cognizance of an
offence. Even assignment of areas under Sec. 8(6) does not militate in
any way against the view that the Chief Inspector can file a complaint
enabling the court to take cognizance. The Additional, Joint or Deputy
Chief Inspectors or any other officer so appointed shall in addition to the
powers of a Chief Inspector, exercise the powers of an Inspector
throughout the State.
! !406
b. Powers of Inspectors (Sec.9):
An Inspector may, within the local limits for which he is appointed -
a. enter, with assistants who are in the service of the Government or any
local or other public authority or with an expert, the premises of a
factory;
b. make examination of the premises, plant, machinery, article or

substance;
c. inquire into any accident or dangerous occurrence, whether resulting

in bodily injury, disability or not, and take on the spot or otherwise
statements of any person which he may consider necessary for such
inquiry;
d. require the production of any prescribed register or any other

document relating to the factory;
e. seize, or take copies of, any register, record or other document or any
portion thereof, as he may consider necessary in respect of any
offence under this Act, which he has reason to believe, has been
committed;
f. direct the occupier that any premises or any part thereof, or anything
lying therein, shall be left undisturbed (whether generally or in
particular aspects) for so long as is necessary for the purpose of any
examination under Clause(b);
g. Take measurements and photographs and make such recording as he

considers necessary for the purpose of any examination under Clause
(b) taking with him any necessary instrument of equipment.
h. In case of any article or substance found in any premises, being an

article or substance which appears to him as having caused or is likely
to cause danger to the health or safety of the workers, direct it to be
dismantled or subject it to any process of test. Further he may take
possession of any such article or substance or a part thereof, and
detain it for so long as is necessary for such examination;
! !407
i. Exercise which other powers as may be prescribed.
c. Additional Powers:
An inspector has also the power -
• To require medical examination of a ‘young person’ working in a factory

(Sec.75), and also especially investigate the cases of employment of
child labor in a health care organization.
• to take sample of any substance used, or intended to be used, in a

factory for the purpose of finding out if the substance is injurious to the
health of the workers (Sec. 91). For example he may order collection of
eatables substances, left over at the site of crime and the case is the
suspected case of organophorous poisoning.
8.1.3. A. Certifying Surgeons (Sec.10):
a. Appointment:
The State Government may appoint qualified medical practitioners to be

certifying surgeons for specified local limits or factories [Sec. 10(1)].a
certifying surgeon may, with the approval of the State Government,
authorize any qualified medical practitioner to exercise any of his powers
[Sec.10(2)]. The medical practitioner must be qualified MBBS doctors with
associate fellow of industrial health (AFIH), the course being recognized by
director general of factory & labor, Mumbai and Central Labor institute
Mumbai.
b. Duties of Certifying Surgeons:
The certifying surgeon shall carry out such duties as may be prescribed in
connection with–
a. the examination and certification of young person’s specially involved

with hazardous work such as involved with mining, dangerous
painting works, fire work, Mica industries etc.
! !408
b. The examination of persons engaged in factories in dangerous

occupations or processes, like person involved with coke oven plant in
a steel industry.
c. the exercising of such medical supervision as may be prescribed for

any factory where
• cases of illness have occurred which it is reasonable to believe or due

to the nature of the manufacturing process carried on, or other
conditions of work prevailing, therein, like cases of occupational
diseases such as Byssinosis seen in the sugar cane workers, silica-
pulmonary T.B.-seen in coal miners etc, especially to note the
effectiveness preventive health control measures applied in the already
diagnosed cases above mentioned diseases.
• by reason of any change in the manufacturing process carried on or in

the substances used therein, there is a likelihood of injury to the health
of workers employed in that manufacturing process, for example the
use of personnel protective devices to reduce the incidence of
occupational diseases, such as use of mask with filters in the coal
miners, use of ear muffs in the person working near aircrafts etc.
• Young persons are, or are about to be, employed in any work which is
likely to cause injury to their health [Sec.10(4)]. This is based on the
concept of ergonomics. For example a person employed with the
security jobs must not suffer from hearing disorder, must not have flats
foot, knock knees, should have good binocular vision, should have
good smelling power etc.
B. Welfare Officer:
Section 49 of the Act imposes statutory obligation upon the occupier of the
factory of the appointment of Welfare Officer/s wherein 500 or more
workers are ordinary employed. Duties, qualifications and conditions of
service may be prescribed by the State Government. For example in a
hospital & health care organization, there should minimum 500 workers, to
justify the post of welfare officer.
! !409
C. Safety Officer:
Section 40-B empowers the State Government for directing an occupier of
factory to employ such number of Safety Officers as specified by it where
more than 1,000 workers are employed or where manufacturing process
involves risk of bodily injury, poisoning or disease or any other hazard to
health of the persons employed therein. The duties, qualifications and
working conditions may be prescribed by the State Government. For
example in a health care organization, the safety officer looks after
a. Proper collection, segregation, transportation and disposal of bio-

medical waste generated in a hospital set up.
b. Proper disposal of radiological waste generated in X-rays and Scanning

department
c. Identification and control of hospital acquired infection
d. Protection of health workers involved with the hazardous job, for

example X-ray technicians, staff nurses working in Chest & TB wards,
STD wards etc.
e. Safety officer is also concerned with general safety issues in a hospital

set up like fire safety & control measures, oxygen treatment plant, etc.
• The safety measures which have to be practiced by X-ray Technicians
a. Use of lead aprons used by X-ray technicians
b. Certification and regular inspection of radiological centre’s by inspection

teams of BARC
c. Use of dosimeter and film bandages by the technicians working in

radiological department
! !410
8.1.4. Heath, safety and welfare measures:
The Act makes detailed provision under Chapters III, IV and V of the Act
with regard to various matters relating to health, safety and welfare of the
workers. These provision impose upon the occupies of mangers certain
obligations
• to protect workers from accident, and
• To secure for them in employment, conditions conductive to their health,

safety and welfare.
a. HEALTH :
Chapter III (Sec. 11 to 20) of the Act deals with the provisions ensuring
the health of the workers. These provisions are as follows:
1. Cleanliness (Sec.11) :
• Factory to be kept clean and free from effluent and dirt. So the hospital
premises should be kept clean, dust free, germ free, with the proper
spray of the insecticides and germicides.
• Effective means of drainage shall be provided as stagnant water is source

of dengue fever, malarial fever, typhoid, etc.
• Use of disinfectants, detergents, painting, repainting and varnishing, re-

varnishing, whitewashing or color washing shall be resorted to.
2. Disposal of Wastes and Effluents (Sec.12):
• Effective arrangements shall be made in every factory for the treatment

of wastes and effluents due to manufacturing process carried on therein,
for example every hospital must have water treatment plant so that
patient and the hospital staff will get pure and hygienic water.
• State Government may make rules prescribing the arrangements to be

made in this regard like environmental protection act, BMW management
rule passed in 1998 etc.
! !411
3. Ventilation and Temperature (Sec.13):
• Effective and suitable provision shall be made in every factory for

securing and maintaining adequate ventilation and temperature,
ventilation can be natural and artificial ventilation.
• The process which produces high temperature shall be separated from

the workroom, by insulting the hot parts or by other effective means.
• The State Government may prescribe a standard of adequate ventilation

and reasonable temperature for any factory and direct that proper
measuring instruments shall be provided and such records as may be
prescribed shall be maintained [Sec.13(2)]. · Prescription of measures by
the State Government to reduce temperatures.
• Service of notice by the Chief Inspector on the occupier to adopt

measures for reduction of temperatures.
4. Dust and Fume (Sec.14):
• Effective measured for prevention of inhalation or accumulation of dust

and fumes shall be taken.
• Exhaust for internal combustion engine.
5. Artificial Humidification (Sec.15):
• Prescribing standards of humidification-ventilation and cooling of air.
• Water used for artificial humidification should be clean.
6. Overcrowding (Sec.16):
• Overcrowding injuries to health of workers to be avoided.
• There shall be at least 9.9 cubic meters’ and 14.2 cubic meters of space
for every worker.
• Notice of maximum of workers to be employed in a workroom.
! !412
7. Lighting (Sec.17):
• Sufficient and suitable lighting in every part of factory shall be provided.
• Glazed windows and skylights to be kept clean.
• Measures for prevention of glare and formation of shadows should be

taken.
• Prescription of standards of sufficient and suitable lighting.
8. Drinking Water (Sec.18):
• Effective arrangements shall be made to provide and maintain at suitable

points conveniently situated for all workers employed therein a sufficient
supply of wholesome drinking water.
• Drinking points to be legibly marked and to be away from urinal, latrine

etc.
• Cooling of drinking water where more than 250 workers employed.
9. Latrines and Urinals (Sec.19):
• Separate latrines and urinals for male and female workers conveniently
situated and adequately lighted and ventilated.
• Latrine and urinal accommodation to be of prescribed sanitary types -

floors and walls to be glazed and their cleaning.
10.Spittoons (Sec.20):
• Sufficient number of spittoons shall be maintained in a clean and

hygienic condition.
• A notice containing the provision of spittoons in the factory shall be

prominently displayed at suitable places in the premises.
• Whoever spits in contravention of Sec. 20(3) shall be punishable with

fine.
! !413
8.1.5. SAFETY:
The safety provision is absolute and obligatory in their chapter and the
occupier of every factory is bound to follow them. They are contained in
Chapter IV (sec. 21 to 41).
1. Fencing of Machinery (sec. 21) :
• Dangerous part of every machinery to be securely fenced like fencing of

burial site of bio-medical waste.
• Prescription of further precautions by State Government like proper

coatings & covering of nascent oxygen pipelines
• Prescription of further precautions by State Government, like regular

inspection of hospital death records by hospital quality audit committee.
2. Work on or near machinery in Motion (Sec. 22) :
• Examination of machinery in motion by a trained adult male worker like

use of hospital incinerator’s by a qualified CSSD technicians.
• Restriction on women and young person to work on machinery in motion

like no female employee is allowed to operate crane, used in the
construction of new wing of the hospital building.
3. Employment of Young Persons on Dangerous Machines (Sec.23):
• Restriction on young person to work on dangerous machines like

machines used in the CVTS unit, must be used by trained cath lab
technician
• Machines dangerous for young person to be specified by the State

Government.
! !414
4. Striking Gear and Devices for Cutting off Power (Sec.24):
• Suitable striking gear to be provided, maintained and used, especially

used in orthopedic surgery, neurosurgery, spinal surgery etc.
• Locking device to prevent accident starting of transmission mach.
5. Casing of New Machinery (Sec.26):
• All machinery driven by power and installed in a factory - every set

screw, bolt or key or any revolving shaft, spindle, wheel or pinion shall
be so sunk, encased or otherwise effectively guarded as to prevent
d a n g e r. F o r e x a m p l e t h e r e s h o u l d b e p r o p e r c a s i n g o f
phacoemulsification and vitrectomy machine, used in ophthalmic O.T.
• If anyone sells or lets on hire either directly or as an agent, any machine

which does not comply with the provisions of Sec. 26, he shall be
punishable with imprisonment or with fine or with both. For example all
pipelines carrying hazardous and combustible gases should be properly
encapsulated and covered with wire mesh.
6. Prohibition of Employment of Women and Children near Cotton-

openers (Sec.27):
• No women or child shall be employed in any part of a factory for pressing

cotton in which a cotton-opener is at work. They should be employed on
the side of the partition where the feed-end is situated.
7. Hoists and Lifts (Sec.28):
• Hoists and lifts to be of good mechanical construction and to be properly

maintained and examined once in every 6 months.
• No lifting machine or appliance shall be deemed to be a hoist or lift

unless it has a platform or case, the direction or movement of which is
restricted by a guide or guides.
• Usually there should be provision for 2 lift, and lift should be on

alternative power supply.
! !415
The special features of a hospital lift are
• Usually there is two sets of the hospital lifts

• Both the lifts work on separate power supply
• One lift is specifically mentioned for ‘’ only for the hospital staffs’’
• One lift should be big enough to adjust the patients trolley and wheel
chair
8. Lifting Machines, Chains, Ropes and Lifting Tackles (Sec.29):
• Cranes and lifting machines etc. to be of good construction and to be

examined once in every 12 months.
• Cranes and lifting machines not to be loaded beyond safe working load.
• Crane not to approach within 6 meters of a place where any person is

employed or working, especially when the construction activities of the
hospital new wing are going on.
9. Floors, stairs and means of access (Sec.32):
• All floors, steps, stairs, passages and gangways shall be of sound

construction and properly maintained.
• Safe means of access to every place at which any person is at any time
required to work shall be provided and maintained.
• When any person has to work at a height from where is likely to fall,
provision shall be made.
10.Pits, sumps, opening in floors, etc. (Sec.33):
• Pits, sumps etc. to be securely covered or fenced.
• The State Government may, by order in writing, exempt any factory in

respect of any vessel, sump, tank, pit or opening from compliance with
the above provision.
! !416
11.Excessive Weights (Sec.34):
• Prohibition on lifting or carrying of excessive weights.
• Maximum weights to be lifted or carried to be prescribed.
• For example, the hospital lifts are designed to carry weight in terms of
the no of persons or or in terms of the weight of person.
12.Protection of Eyes (Sec.35) :
• In every factory, screen or suitable goggles shall be provided for the

protection of persons employed on, or other process which involve any
danger or injury to the worker’s eyesight.
• There should be the provision for clean water supply to do eye washing
by means water fountains.
13.Precautions against Dangerous Fumes, Gases etc. (Sec.36):
• Prohibition on entry into any chamber, tank, vat, pit, pipe etc. where any
gas, fume etc. is present.
• Practicable measures to be taken for removal of gas, fume etc. shall be

taken.
• Incineration of the hospital waste leads to the generation of hazardous

gases, this is the reasons hospital incinerators are located separately and
away from the main hospital building.
14.Precautions regarding the use of Portable Electric Light (Sec.

36A):
• No portable electric light or any other electric appliance of voltage

exceeding 24 volts shall be permitted for use inside any chamber, tank,
vat, pit; flue or other confined space in a factory, unless adequate safety
devices are provided.
! !417
• In a hospital set up, there are many appliances which are dependent on
electricity such as suction machines, pulse oxmeter, heart lung machine,
AC of ICCU, OT, and NICCU.
• This is the reasons why hospital electric department do their electric

mock drill, preventive and predictive maintenance work related to
electrical outfits, insulation of the cable wires, proper earthling,
prevention against fire out break secondary to short circuits etc.
15.Precautions against Explosive in Inflammable dust, gas etc.

(Sec.37):
• Practicable measures to prevent explosion on ignition of gas, fume etc.

shall be taken.
• Provision of chokes, vents, etc. to restrict the spread of the explosion.
• Special measured are taken where explosive or inflammable gas or vapor

is under pressure greater than atmosphere pressure.
• A plant, tank or vessel containing explosive or inflammable substance

shall not be welded, brazed, soldered or cut by applying heat until such
substance and fumes are rendered non-explosive and non-inflammable.
• The State Government may by rules exempt any factory from compliance
with all or any of the provision of Sec.37.
• Different types of inflammable gases such as NVO (nitrous oxide),

NASCENT oxygen, C3F8 gases, HCHO (formaldehyde), methane gases
etc are used for inducing the patients just before doing operations.
16.Precautions in case of Fire (Sec.38):
• Practicable measures shall be taken to prevent outbreak of fire and its

spread, both internally and externally, and to provide and maintain - safe
means of escape for all persons in the event of a fire; and the necessary
equipment and facilities for extinguishing fire.
• Onset of the fire is an exothermic reaction, and to stop the outbreak, the
source of the oxygen supply has to be cut off by using dry (carbon
! !418
dioxide) type of fire extinguisher. This is the reason , why fire

extinguisher is installed in ICCU, NICU, OT, CSSD, CCU etc
• As the administrator of the hospital services, one should see, whether

proper calibration of the fire extinguisher is done or not.
• Effective measures shall be taken to ensure that in every factory all the
workers are familiar with the means of escape in case of fire and have
been adequately trained.
• One should carry out fire safety mock drill, celebration of fire safety
week, proper training of the hospital staffs to fight against fire outbreak
etc.
17.Power to require specification of defective parts or test of

stability (Sec.39:
If the inspector feels that the conditions in the factory are dangerous to
human life or safety he may serve on the occupier or manager or both
notice in writing requiring him before the specified date to furnish such
drawings, specifications and other particulars as may be necessary to
determine whether such building, machinery or plant can be used with
safety or to carry out such test in such a manner as may be specified in the
order and to inform the inspector of the results thereof. Now days the
hospital architect, design and plan the site for fire control unit, which is
specifically marked in the architect drawing , based on this , the municipal
commissioner gives nod for starting the construction of the hospital
building.
18.Safety of Buildings or Machinery (Sec.40):
The inspectors in the case of dangerous conditions of building or may part

of ways, machinery or plant require the manager or occupier or both to
take such measures which in his opinion should be adopted and require
them to be carried out before a specified date. In case the danger to
human life is immediate and imminent from such usage of building, ways
of machinery he may order prohibiting the use of the same unless it is
repair or altered. The safety measures installed in the hospital buildings
are
! !419
a. Protection against earth quake

b. Protection against fire out break
c. Protection against building collapse
d. Protection against flash floods
19.Maintenance of Buildings (Sec.40-A):
If it appears to the inspector that any building or part of it is such a state

of disrepair which may lead to conditions detrimental to the health and
welfare of workers he may serve on the manager or occupier or both, an
order in writing specifying the measures to be carried out before a
specified date. Special maintenance work carried in the hospital and health
care organization is based on the following assumptions
a. Where the movement of patient and hospital staff is maximum- like

hospital corridors, staircases, hospital lifts
b. Where patient load is maximum – hospital casualty and trauma centre,

especially if the hospital is located on the highway, hospital labor ward
where lot of deliveries are conducted.
c. Where most vulnerable and incapacitated patients are kept – ICCU,

NICCU, CCU, burn units etc
d. Where most sophiscated and costly instruments are kept –

cardiothoracic OT, orthopedic OT, plastic surgery OT, neurosurgery OT
etc.
e. Place in the hospital where lot of clinical trial and clinical research is
going on, as newer innovative instruments, space to maintain patient
data record, lot of foreign dignitaries visits forces the hospital to
maintain their outlook as par with the international standards. These
departments are hospital pharmacy & clinical trial units, hospital
oncology department, hospital genetic & bio engineering department,
hospital environmental medicine department etc.
! !420
20.Safety Officers (Sec.40-B):
In every factory, (i) where 1,000 or more workers are ordinarily employed,
or (ii) where the manufacturing process or operation involves risk of bodily
injury, poisoning or disease or any other hazard to health of the persons
employed therein, the occupier shall employ such number of safety officers
as may be specified in the notification with such duties and qualification
and conditions of service as may be prescribed by State Government.
• As hospital administrator, on the following basis you will justify the

selection of safety officer in your hospital set up
a. On the basis of the number of the employee, at least 1000 hospital

staffs working
b. Where serious procedures are carried out – such as provision for

carrying out autopsy in the hospital set up
c. Where the hospital is located on high ways and receive lot of medico-
legal patients
d. Where lot of foreign patients visit the hospital for treatment as the part
of medical tourisms.
8.1.6. WELFARE :
Chapter V (Sec. 42 to 50) of the Act deals with facilities for the welfare of
workers. The various provisions in this regard are as follows:
1. Washing Facilities (Sec. 42):
• In every factory adequate and suitable facilities shall be provided and

maintained for the use of the workers
• Such facilities shall be conveniently accessible and shall be kept clean.
• Many hospitals gives its employees washing allowances as the part of

salary to keep them clean and tidy, specially the hospital staffs involved
with laboratory works, autopsy, OT, STD facilities, chest & TB etc.
! !421
2. Facilities for Storing and Drying Clothing (Sec. 43)
• The State Government may make rules requiring the provision of suitable
places for keeping clothing of workers not worn during working hours and
for the drying of wet clothing in respect of any factory or class of
factories.
• Many hospitals provides lockers facilities for staff nurses who can change
their dress and keep it before going to ward, OT etc.
• Many places in a hospital such as HOSPITAL CSSD, have facilities for the
drying of the clothes such as OT dresses, OT gowns, OT surgical wares
etc
3. Facilities for Sitting (Sec. 44):
• Provision of sitting arrangement for workers obliged to work in a standing

position.
• Provision of seating arrangement for workers doing work which can be

done in a sitting position
• In a hospital set up , there should be proper sitting position for
a. For the patients & their relatives in OP

b. Outside operation theatre
c. Outside hospital laboratories and blood banks
d. Also for the in-house medical staffs like proper sitting facilities inside
the doctor's chambers, in the wards, in the ICCU etc.
4. First-aid Appliances (Se. 45):
• There should be at least one first-aid box with prescribed contents for
every 150 workers.
• First-aid box should contain only the prescribed contents.
• First-aid box to be in charge of responsible persons.
! !422
• There should be an Ambulance room with ambulance & driver in every

factory employing more than 500 workers. Ambulance should be
equipped with first aid box.
• First - aid box can be opened by any person, at the time of emergency
and accidents and should contain life saving medicines and basic dressing
materials. It should also contain basic instruments used in the
resuscitation of the patients of the patients, in cases of acute medical
crisis like RTA, high grade fever, acute gastroenteritis etc.
5. Canteens (Sec. 46):
• Canteen shall be provided and maintained in factory employing more

than 250 workers.
• Hospital canteens and cafeteria's are for the
a. Hospital staffs
b. For the admitted patients
c. For the patients relatives
d. For the outside parties visiting the hospital - such as medical
representatives, medical appliances sales man, outside doctors &
paramedics visiting the hospital etc.
6. Shelters, rest rooms and lunch rooms (Sec. 47):
• Provision to be made for shelters, rest rooms, lunch rooms in factories

employing more than 150 workers.
• Shelters etc. to be sufficiently lighted ventilated and cooled.
7. Crèches (Sec. 48):
• Provisions to be made for Crèche's in factories employing more than 30

women workers.
• Crèches to be adequately lighted and ventilated and to be under the

charge of trained women.
! !423
• Lactating mother must be given two additional breaks of ½ hour each, in

order to do the breast feeding.
8. Welfare Officers (Sec.49):
• Employment of Welfare Officers in factories employing 500 or more

workers.
• The State Government may prescribe the duties, qualifications and

conditions of service of welfare officers.
• Welfare officers are concerned with
a. Provision of canteen facilities for the staff

b. Provision of scholarship for the family
c. Provision of arranging family get together and family picnic
d. Raising issues regarding welfare of the employees - distribution of rain
coats, safety boots, batteries, official dress etc.
The State Government may make rules exempting, subject to compliance

with such alternative arrangements for the welfare of workers as may be
prescribed, any factory or class or description of factories from compliance
with any of the provisions of Sec. 42 to 49.
8.1.7. A. WORKING HOURS OF ADULTS
Chapter VI contains provisions for regulating working hours for the adult
workers. The rules as to the regulation of hours of work of adult workers in
a factory and holidays are as follows:
1. Weekly hours (Sec. 51): No adult worker shall be required or allowed to

work in a factory for more than 48 hours in any week. But in many
organizations this is restricted to 40 hours per week for the officer
category employees.
2. Weekly holidays (Sec.52): This section provides that there shall be a

holiday for the whole day in every week and such weekly holiday shall
be on the first day of the week. However, such holiday may be
substituted for any one of the three days immediately before or after
the first day of the week.
! !424
3. Compensatory holidays (Sec.53): Where a worker is deprived of any of

the weekly holidays under Sec. 52 or by any of the rules made by the
State Government exempting a factory from the provisions of Sec.52,
he shall be allowed compensatory holidays for equal number of the
holidays so lost. Such compensatory holidays shall be allowed within the
month in which the holidays were due to the workman or within 2
months immediately following that month.
The State Government may prescribe the manner in which the

compensatory holidays shall be allowed. Usually compensatory off is given
to employee if the holiday fall on the declared holiday.
4. Daily hours (sec.54): Subject to the above rule no adult worker shall be
required or allowed to work in a factory for more than 9 hours in any
day.
5. Intervals for rest (Sec.55): The periods of work of adult workers in a

factory each day shall be so fixed that no period shall exceed 5 hours.
Further, no worker shall work for more than 5 hours before he has an
interval for rest of at least held an hour. The total number of hours
worked without an interval shall not exceed 6 hours.
6. Spread over (Sec.56): This section provides that the daily working
hours should be adjusted in such a manner, that inclusive of rest
interval under Section 55, they are not spread over more that 10 ½
hours on any day.
b. Night Shifts (Sec.57):
Where a worker in a factory works on a shift which extends beyond

midnight -
a. his weekly or compensatory holiday for a whole day means a period of

24 consecutive hours beginning when his shift ends, and
b. The following day for him shall be deemed to be the period of 24

hours beginning when such shift ends, and the hours he has worked
after midnight shall be counted in the previous day.
! !425
c. Extra Wages for Overtime (Sec.59):
1. Wages at twice the ordinary rate : Where a worker works in a factory for
more than 9 hours in a day or more than 48 hours in any week, he shall
in respect of overtime work be entitled to wages at the rate of twice his
'ordinary rate of wages' [Sec.59(1)].
2. Ordinary rate of wages: It means the basic wages plus such allowances,
including the cash equivalent of the advantage accruing through the
concessional sale to workers of food grains and other articles, as the
worker is for the time being entitled to. It does not include a bonus and
wages for overtime work [Sec.59 (2)].
3. Workers paid on piece rate basis: The time rate in case of workers paid
on piece rate shall be deemed to be equivalent to the daily average of
their full time earnings for the days on which they actually worked on
the same or identical job during the month immediately preceding the
calendar month during which the overtime work was done, and such
time rates shall be deemed to be the ordinary rates of wages of house
workers [Sec. 59(3)].
d. Restriction on Double Employment (Sec.60):
No adult worker shall be required or allowed to work in any factory on any

day on which he has already been working in any other factory served in
such circumstances as may be prescribed. This very important for medical
doctors as many organizations permitted to do private practice, but after
their duty hours. This is the reason why BMC is conducting to do official in
enquiry to know whether the doctors are carrying out their official medical
duty as per their schedule and are not involved with the practice during
office hours. In many organizations which do not allows its doctors to do
private practice, gives them Non- Practicing allowances.
8.1.8. ANNUAL LEAVE WITH WAGES :
Sect. 78 to 84 (Chapter VIII) provide for the grant of a certain period of

leave with wages to workmen.
! !426
8.1.8.1. a. Rules relating to Annual Leave with Wages:
1. Leave entitlement - Every worker who has worked for a period of 240
days or more in a hospital set up during a calendar year shall be allowed
during the subsequent calendar year leave with wages for a certain
number of days as per the recommendation of the factories act 1948.
These days of leave shall be calculated at the rate of -
• For an adult, one day leave is granted for every 20 days of work
performed by him during the previous calendar years;
• For a child, one day leave is granted for every 15 days of work
performed by him during the previous calendar years [Sec. 79(1)].
The leave admissible under the above rule shall be exclusive of all holidays
whether occurring during or at either end of the period of leave.
2. Computation of period of 240 days: For computing the period of 240

days, the days of lay-off, maternity leave to a female worker not
exceeding 12 weeks, and the leave earned in the previous year shall be
included in this period of 240 days, but he/she shall not earn leave for
these days.
3. Discharge, dismissal, superannuation, death or quitting of employment:

If a worker is discharged or dismissed from service or quits his course of
the calendar year, he or his heir or nominee, as the case may be, shall
be entitled to wages. These wages shall in lieu of the quantum of leave
to which he was entitled calculated at the rates specified in Sec. 79(1).
4. Treatment of fraction of leave: In calculating leave period, fraction of

leave of half a day or more shall be treated as one full day's leave, and
fraction of less than half a day shall be omitted.
5. Treatment of unveiled leave: If a worker does not in any one calendar

year take the whole of the leave allowed to him, any leave not taken by
him shall be added to the leave to be allowed to him in the succeeding
calendar year. But the total number of days of leave that may be carried
forward to a succeeding year shall not exceed 30 in the case of an adult
or 40 in the case of child. However, annual leave not allowed because of
any scheme for leave in operation shall be carried forward without any
! !427
limit. In many government organization , the earn leave can be

accumulated up to 300 days , which can be enchased at time of
retirement and payment for such accumulated leave includes basic
component of the salary + dearness allowances.
6. Application for leave to be made in writing within a specified time: A

worker may at any time apply for annual leave in writing to the
manager of the factory at least 15 days before the date on which he
wishes his leave to begin. In a public utility service the application shall
likewise be made at least 30 days before the date on which the worker
wishes his leave to begin, with proper reasons to take the leave, contact
address and phone number, so that in acute emergency , one can
contact them if required.
7. Annual leave with wages cannot be availed for more than three times
during the year.
8. The application to avail annual leave with wages for illness purposes can
be made at any time.
9. Scheme for the grant of leave: For the purpose of ensuring the
continuity of work, the occupier or the manager of a factory may draw
up and submit with the Chief Inspector a scheme for regulating the
grant of leave.
10.Display of scheme for grant of leave: The scheme shall be displayed at

some convenient and conspicuous places in the factory. It shall be in
force in the first instance for 12 months, and may be renewed for a
further period of 12 months at a time. A notice of renewal for a further
period of 12 months at a time. A notice of renewal shall be sent to the
Chief Inspector before it is renewed.
11.Payment of wages to worker for leave period if he is discharged or if he

quits service: If a worker being entitled to leave according to the rules is
discharged, or if having applied for is refused leave and quits service
before the has taken the leave, he shall be paid wages in respect of the
leave not taken.
12.Unveiled leave not to be taken into account while computing period of

notice : The unveiled leave of a worker shall not be taken into
! !428
consideration in computing the period of any notice required to be given

before discharge or dismissal.
8.1.8.2. b. Wages during Leave Period (Sec. 80):

For the leave allowed to a worker he shall be entitled to wages at a rate
equal to the daily averaged of his total full time earnings for the days on
which he actually worked during the month immediately preceding his
leave. The full time earnings shall be exclusive or any overtime and bonus
but inclusive of dearness allowance.
8.2 WORKMEN'S COMPENSATION ACT, 1923
Structure
8.2.1. Introduction
8.2.2. Distribution of Compensation
8.2.3. Schedule IV
8.2.4. Social Security Scheme
• This is a central Act. It provides for the compensation to be paid to the

workers, for personal injury, including death, suffered by them on
account of accidents arising out of and in the course of employment.
• Only the persons enlisted in schedule II of the Act are eligible for the
compensation. A peculiar meaning is attributed to the term
compensation under the Act as it becomes payable not because of a
tort or wrong doing by the employer. The employer's liability under the
Act has in fact no connection with any wrong doing by him. The general
principle is that a workman who suffers injury in the course of and out of
his employment is entitled for compensation, in case of his accidental
death in the course of this employment his dependents should be
compensated.
• The general principle is that compensation should ordinarily be given to

workmen who sustained personal injuries by accidents arising out of and
! !429
in the course of their employment, compensation will also be given in

certain limited circumstances for diseases. Provision has been made for
special Tribunals to deal cheaply and expeditiously with any disputes that
may arise, and generally to assist the parties in the manner which is not
possible for the civil Court .The Workmen's Compensation act, 1923
is having quasi penal statute and it must not be interpreted with
sympathetic leniency but must be construed strictly.
• Under the Act a dependent means any of the following relatives of a

deceased workman i.e. widow, minor legitimate son, an unmarried
legitimate daughter or a widowed mother and if wholly dependent on the
earning of the workman at the time of his death a son or a daughter who
has attained the age of 18 years and who is infirm, if wholly or in part
dependent on the earnings of the workman at the time of his death-
a. a widower
b. a parent other than a widowed mother
c. a minor illegitimate son, an unmarried illegitimate daughter or
daughter legitimate or illegitimate of married and a minor if widowed
and a minor,
d. a minor brother or an unmarried sister or a widowed sister if a minor
e. a widowed daughter in law
f. a minor child of a pre-deceased son
g. a minor child of a pre-deceased daughter where no parent of the child
is alive or
h. A paternal grandparent if the parent of the workman is alive.
• The conditions on which a son or daughter who has attained 18 years

of age, will get compensation under the workmen's compensation act
1923
a. If he or she is an infirm
b. Do not get employment throughout his life due to his or her
infirmity
c. Is solely dependent for earnings on the deceased at the time of his
death
• The employer under the workmen's compensation act 1923 includes
! !430
1. anybody of persons whether incorporated by an employer?

2. managing agent of an employer
3. the legal Representative of a deceased employer
4. When the services of a workman are temporarily lent or let on hire to
another person by the person whom the workman has entered into a
contract of service or apprenticeship, means such other person while the
workman is working for him.
A managing Agent means any person appointed or acting as the

representative of another person for the purpose of carrying on the other
person's trade or business but does not include an individual manager
subordinate to an employer. For example there are many hospitals run by
big industrial house such as B M BIRLA heart institute located at Kolkata,
Kokilaben Dihrubhai Ambani hospital located at Mumbai. The CEO & VP of
this hospital serves as managing agent for this big corporate house.
• Partial disablement means "Where the disablement is of a temporary

nature such disablement reduces the earning capacity of a workman in
any employment in which he was engaged at the time of the accident
resulting in the disablement and where the disablement is of a
permanent nature, such disablement as reduces his earning capacity in
every employment which he was capable of undertaking at that time,
provided that the injury is deemed to result into a permanent partial
disablement". total disablement means "such disablement whether of
a temporary or permanent nature, as incapacitates a workman for all
work which he was capable of performing at the time of the accident
resulting in such disablement”.
• Under Section 3 of the Workmen's Compensation Act, the Employer is

liable for payment of compensation, if personal injury is caused to a
workman by accident arising out of and in the course of his employment,
the employer is liable to pay compensation as per the calculations.
• The conditions on which employee is not liable to get compensation from

the employer, under the workmen's compensation act 1923
a. Any injury which does not result in total or partial disablement of the
workmen for a period exceeding 3 days.
! !431
b. injury not resulting into death or permanent total disablement caused

by a accident which is directly attributable to the workman being
under influence of drug or drinks
c. Willful disobedience of the workman,
d. Willful removal or disregard by the workman of any safety guard or

device which was being provided for safety.
Case Law:
1. Section 3, Accident arising out of employment and during the

course of employment.
Indian Rare Earths Ltd. V/s Subaida Beevi - 1981 (TAC) 359 (Ker).
Company allowed the workman to reach the work place on a bicycle - He
started from his residence to place of work on bicycle at 4 P.M., but on the
way a car dashed him and he died.
2. Water drum kept by employee for drinking purposes. Two employees

drank the water and fell sick with acute gastro / enteritis. One dies and
other survived. This accident is during and out of employment.
• The deceased employee through his legal representative or heirs can

make a claim to the commissioner for Workmen's Compensation.
However, the claimant can make a choice between either 2 Forums 110-
AA of the Motor Vehicles Act, 1939 or the W.C. Act. But no tow claims
can lie at the same time.
• Under Section 3, it is very essential to find out the commencement and

discontinuance of the workman's employment i.e. the National extension
of the employers prances - Saurashtra Salt Manufacturing Co. V/s Bai
Value Raja, AIR 1958 S.C. 881 BEST V/s Mrs. Agnes AIR 1964 S.C. 193.
• From the above discussion, it can be seen that the claimant has to fulfill
the following test for payment of compensation. 
! !432
1. There must be personal injury to the workman

2. Personal injury must have been occasioned by an accident.
3. Accident must have arisen out and in the course of employment.
4. Injury must have resulted in the death or total or partial disablement for
a period exceeding 3 days.
A. Casual connection between cause of death and nature of duties is

sufficient to claim compensation. Case study: - Strenuous duty and
working condition in which cook was working accelerated his death and
dependents of the deceased are entitled to get compensation.
1994 (II) LLJ 795 (Raj H.C.):
Divisional Personal Officer V/s Ashiya Begam.
Causal Labor is a workman; though a person may be employed casually he

would be deemed to be a workman, if his employment is for the purpose of
employer's trade or business. So he is entitled for compensation under
W.C. Act 1923
Hirajibhai V/s Damodar AIR 1957 (MP) 49.

A person whose employment is of a casual nature and employed otherwise
than for employer's trade or business is not workman - 1989 (59) ELR Page
55 (Ker). Since his contract is not directly with the employer, but indirectly
through third party, so he is not entitled for the compensation under W.C.
Act 1923.
Parameshwaram V/s Parameshwaram Nair.

A daily wage earner may be a workman under Section 2 (1) (n) of the
W.C.Act. Daily wage earner may be workman, if other conditions of
definition fulfilled - AIR 1955 Pat 260 - Ram Newas Khandelwal V/s
Mariam.
Driver:
A driver of a truck belonging to a company who was engaged by the
Company during the absence or leave of a permanent Driver is nonetheless
workman if he dies on duty. So the person working as locum to fulfill the
organizational needs cannot be considered workman, as he does not enjoy
the same right as the regular employees.
! !433
1960 (I) FLR 547. Mohammed Sadiq V/s Chhoti.
The Section. 4 of the W.C. Act 1923, gives us the details as to how the
amount of compensation is to be calculated.
B. In case of death of an employee, the compensation shall be equal to

50% of the monthly wages of the deceased workman multiplied by the
relevant factor or 50,000- whichever is more.
C. In case of permanent total disablement resulting from an injury the

compensation is 60% of the monthly waged multiplied by the relevant
factor or Rs. 60,000/- whichever is more.
D. The relevant factor in relation to the workman means, the factor

specified in the column of Schedule - IV and against the entry in the
first column of that Schedule specifying the Number of years which are
the same as the completed years of the age of the workman preceding
the date on which the compensation is due.
E. Where the monthly wages of the workman exceed Rs. 2000/- his
monthly wages for the purpose of the compensation be deemed as Rs.
2000/-.
F. In case of permanent partial disablement results from the injury such

percentage of the compensation which would have been payable in the
case of permanent total disablement as is specified therein being % of
loss of earning capacity.
G. Where more injuries than one are caused by the same accident, the
amount of compensation payable under this Head shall be aggregated
but not so in any case as to exceed the amount which would have been
payable if permanent total disablement and resulted injuries.
H. In assessing the loss of earning capacity for the purposes of the injury
in Sch.-I the qualified Medical Practitioner shall have due regard to the
percentages of loss of earning capacity in relation to different injuries.
I. Where temporary disablement whether total or partial results from

injury a half-monthly payment of the sum equivalent to twenty five
percent of monthly wages is paid.
! !434
J. The monthly wages means the amount of wages deemed to be payable

for a month's services as follows:-
a. Whereas workman has worked for a continuous period of 12 months

immediately preceding the accident, the employer is liable to pay
compensation, the monthly wages of the workman shall be 1/12 of
the total wages due for payment.
b. Where the continuous period of service is one month, the monthly

wages of the workman shall be the average of the monthly amount.
c. In other cases including cases in which it is not possible for want of

necessary information to calculate the monthly wages under the
Clause (B) the monthly wages shall be thirty times the total wages
earned in respect of the last continuous period of service immediately
preceding the accident.
K. Distribution of compensation
• A workman whose injury has resulted in death and no payment of a lump

sum as compensation to woman or a person under a legal disability shall
deposit with the Commissioner. Any payment made by the Employer
directly cannot be said to the payment of compensation.
• In case of a deceased workman, an employer may make any dependent

advances on account of compensation, i.e. amount equivalent to 3
months wages and does not exceed the compensation payable to that
dependent; this amount shall be deducted by the Commissioner from the
compensation payable to the employee (deceased).
• On deposit of money, the Commissioner of Workmen's Compensation

shall if necessary publish or serve a notice to the dependent calling the
dependents to appear before him on such a date for the distribution of
the compensation. After necessary inquiry which the Commissioner
deems necessary, that no dependent exists, he shall pay the balance
amount to the employer. The employer if demands the disbursement of
the amount, the details of amount shall be furnished. The amount of
compensation deposited shall be apportioned amongst the dependents of
the deceased workman. The discretion is that of the Commissioner whom
to give the amount of compensation.
! !435
• When the lump sum amount is payable to a workman or a person under

legal disability, the sum may be reinvested or otherwise dealt with for the
benefit of the woman, and may be paid half-monthly, payment is payable
to any person under legal disability on his own notion of payment be
made for the welfare of the workman. Where an application is made to
the commissioner, an amount of neglect of children on the part of the
parent or variation of circumstances of the dependent or of any other
sufficient cause, the Commissioner may make such orders for the
variation of the former order as he thinks just in circumstances. No
orders are passed unless such person has been given an opportunity of
showing cause as to why such an order should not be made.
Pasupati V/s Kelvin Jute Mills

41 CN 1048
Schedule:
Factors for working out lump sum equivalent of compensation amount in

case of permanent disablement and death.
Completed years of age immediately preceding the date on which the

compensation fell due
• In case pay is less than Rs. 2000 then calculates daily wages & multiple
by 26 (26 working days in a month) multiply the result of the above
process by the factor for that age.
• Relevant date of determination entitlement to compensation is the date

on which the employee died and not the date on which enquiry was made
- Rani V/s Deputy Commissioner of Labor 1985 (I) LLN 365.
! !436
Not more Years Factors Not more Years Factors

than than
16 228.54 41 181.37
17 227.49 42 178.49
18 226.38 43 175.54
19 225.22 44 172.52
20 224 45 169.44
21 222.71 46 196.29
22 221.37 47 163.07
23 219.95 48 159.8
24 218.95 49 156.47
25 216.91 50 153.09
26 215.28 51 149.67
27 213.57 52 146.2
28 211.79 53 142.68
29 209.92 54 139.13
30 207.98 55 135.56
31 205.95 56 131.95
32 203.85 57 128.33
33 201.66 58 124.71
34 199.4 59 121.05
35 197.06 60 117.41
36 194.64 61 113.77
37 192.14 62 110.14
38 189.56 63 106.52
39 186.9 64 102.93
40 184.17 65 99.371
! !437
• Where any order of payment of compensation has been obtained by

fraud, impersonation or other improper means, any amount so paid shall
be recovered as follows :-
• The Commissioner may recover as an arrears of land revenue whether

under an agreement for payment of compensation or otherwise as per
Section 5 of after the happening and within a period of 2 years in the
case of death.
• No claim for compensation shall be entertained by a Commissioner,

unless notice of the accident has been given in the manner referred to
hereinafter, after the happening and within a period of 2 years in the
case of death.
The period of 2 years shall be counted from the day the workman gives
notice of the disablement to his employer - (partial disablement).
• Where the workman is continuously employed and ceases to be

employed and develops symptoms of any occupational disease peculiar
to that employment within 2 years of the cessation of the employment,
the accident shall be due to employment, provided that the accident shall
not be barred for the entertainment of a claim.
a. If the claim is in respect of the death of a workman resulting from an

accident which occurred on the premises of the employer or any
place where the workman at the time of the accident was working
under the control of the employer and the workman died on such
premises or without having left the vicinity has died in the accident.
b. Where if the employer had knowledge of the accident from any other
source at or about the time when it occurred.
• If a workman dies due to and while on duty, his dependents may intimate
commissioner in writing, within 30 days of the occurrence of the death
and where any accident occurs within the premises of the employer and
results in death, the person from the office is required to give notice
within 7 days of the death of deceased and the death report must be
send a report to the Commissioner giving the circumstances of the death.
! !438
• "Serious bodily injury" means an injury which involves, the permanent

loss of the use of or permanent injury to any limb loss or injury to the
sight or hearing or of the facture of any limb or the enforced absence of
the injured from work for a period exceeding 20 days.
• Any workman who refuses to submit himself for medical examination, the
right to compensation shall be suspended during the continuance of
refusal or obstruction.
• Where the principal is liable to pay compensation under this section, he

shall be entitled to be indemnified by the contractor and all questions
regarding the amount and right and default of agreement be settled by
the Commissioner. Nothing shall be constructed as preventing a workman
from recovering compensation from the contractor instead of the
principal.
• Where the workman has recovered compensation in respect of any injury

caused under circumstances creating a legal liability of some person
other than the person by whom the compensation was paid, the person
by whom the compensation was paid and any person who is called on to
pay or indemnify shall be entitled to be indemnified by the person to pay
damages.
L. Insolvency of Employer - Where any employer has entered into a

contract which any is serves in respect of any liability to any workman,
then in the event of the employer becoming insolvent, in the event of
the company having commenced to be worked up, the rights of the
employers against the insurers in respects of the liability,
notwithstanding anything in law for the time being in forces relating to
insolvency or winding up for companies, be transferred to the insurers
shall leave the same rights and remedies as of the employer.
The liability of the insurers to the workman is less than the liability of the
employer to the workman. In case of the contract of the employer with the
insurers is void or voidable by reason of non-compliance on the part of the
employer with any terms and conditions of the Contract, the insurers shall
be entitled to prove in the insolvency proceedings or liquidation for the
amount paid to the workman United instead India Insurance Corporation V/
s Alphonsa 1988 II CLR (Ker H.C.) - Insurers instead of the employer can
be directed to pay compensation to the workman.
! !439
• Special provisions relating to workman abroad of companies and motor

vehicles ;
• According to the Motor Vehicles Act 1988 drivers, helpers, Mechanics

cleaners or other workman, must send the notice of accident and the
claim for compensation to the local agent of the company or the local
agent of the owner of the motor vehicle in the country of the accident. In
case of death of the owner of the workman in respect of the claim of the
compensation, it shall be made within one year after the news or death
received by claimant. Where an injured workman is discharged or left
behind in any part of India or in any other country any deposition taken
by any Judge or Magistrate in that part or by any consular officer in the
foreign country and or State government shall in any proceedings for
enforcing for enforcing the claims be admissions in evidence if,
a. the deposition is authenticated by the signature of a Judge

magistrate
b. if the defendant had an opportunity by himself or his agent to cross

examine the witness
c. If the deposition was made in the course of a criminal proceeding on

proof that the deposition was made in the presence of the person
accused and it shall not the person appearing to have signed any
such deposition.
• If any question arises in any proceedings under this Act as to the liability
of any person to any compensation or as to the amount of or duration of
compensation the question shall, in default of agreement be settled by a
commissioner.
• Where any matter is under this Act to be done by or before a

commissioner the same shall subject to the provisions of this Act and to
any rules there under be done by of before a commissioner for the area
in which.
a. The accident took place which resulted in the injury.
b. The workman or in case of his death the dependant claiming the

compensation ordinarily resides.
! !440
c. The employer has his registered office.
• Provided that the commissioner shall not proceed on the matter unless
the commissioner has jurisdiction over the area in which the accident
took place/
• Where an accident occurs in respect of which liability to pay

compensation under this Act arises, a claim for such compensation may
subject to the provisions of this Act.
• No application for the settlement of any matter by a commissioner other

than an application by a dependants for compensation shall be made
unless and until some question has arisen between the parties in
connection therewith which they have been unable to settled by
agreement.
• An application to the commissioner may be made in such form and shall

be accompanied by such fee as may be fixed and shall contact in the
particulars a concise statement of the circumstances in which the
application is made and the relief or order which the applicant claims.
• In case of claim for compensation against the employer the date of

service of notice of accident on the employer and such notice has not
been served upon the employer in due time and the reasons for such
omissions the names and addresses of the parties the concise statement
of the matters on which the agreement has come and those in the
agreement which has not come.
• If the applicant is illiterate and is unable to furnish the required

information then writing the application shall if the applicant so desires
be prepared under the direction of the commissioner.
• The commissioner shall have the powers of the Civil Court under the
Code of Civil Procedure for the purpose of recording evidence, enforcing
the attendance of witnesses, compelling the production of documents
and material objects.
• The court proceedings for the settlement of the claims disputes brought
in court of law as per the workmen's compensation act 1923.
! !441
a. The commissioner shall have the powers of the Civil Court under the
Code of Civil Procedure for the purpose of recording evidence
b. enforcing the attendance of witnesses
c. compelling the production of documents and material objects
• Where the amount of any lump sum payable as compensation has been
steeled by agreement whether by way of redemption of a half monthly
payment or otherwise where any compensation has been so settled a
being payable a memorandum thereof shall be sent to the commissioner
on being satisfied as to the genuineness record the memorandum in a
register in the prescribed manner.
• Provided that no such memorandum shall be recorded seven days after

the communication by the commissioner of notice to the parties
concerned. The commissioner may at any time rectify the register.
• Where it appears to the commissioner that an agreement as to the

payment of lump sum whether by way of redemption of a half monthly
payment or otherwise of an agreement as to the amount of
compensation payable ought not to be registered by reason of the
inadequacy of the sum or amount or by reason of the agreement been
obtained by fraud or undue influence or other improper means.
• The commissioner may recover the amount of compensation as an arrear

of land revenue any amount under the act whether under the agreement
or otherwise.
8.2.4 Social Security Schemes:
This enactment it a kind of social security legislation. It came in force in

the year 1923 and thus it is an oldest enactment of the kind. In the year
1948 the Employees state Insurance Act was introduced and through it
another social insurance scheme took place. The later scheme rests on
joint contribution by workers, employers and Government. This is not the
case with the earlier Act of 1923. These two legislations i.e. the Act of
1923 and the Act of 1948 together could be called code of social security
benefits for the workers. However it must be noted that only one of these
two Acts is applicable.
! !442
• List of Injuries Deemed to Result in Permanent
% of loss of
No. Description of Injury earning
capacity
1 Loss of both hands or amputation at higher sites 100
2 Loss of hand and a foot 100
Double amputation through leg or thigh or amputation through

3 100
leg or thigh on one side and loss of other foot
Loss of a sight to such an extent as to render the claimant to

4 100
perform any work for which eyesight is essential
5 Very severe facial disagreement 100
6 Absolute deafness 100
• List of Injuries Deemed to Result in Permanent Partial Disability

Amputation case upper limbs (either arm)
% of loss of
No. Description of injury
earning capacity
1 Amputation through shoulder joint 90
Amputation below shoulder with stump less than (20.32

2 80
cms) from tip of accordion
Amputation from (2 0.32 cms) from tip of acromion to less

3 70
than (11.43 cms) below tip of olecranon
Loss of hand or of the thumb and four ?ngers of one hand

4 60
or amputation from (11.43 cms) below tip of olecranon
5 Loss of thumb 30
6 Loss of thumb and its metacarpal bone 40
7 Loss of four ?ngers of one hand 50
8 Loss of three ?ngers of one hand 30
9 Loss of two ?ngers of one hand 20
10 Loss of terminal phalanx of thumb without loss of bone 10
! !443
AMPUTATION CASES LOWER LIMBS
1 Amputation of feet resulting in end bearing stumps 90
2 Amputation through both feet proximal to the metatarso 80

phalangeal joint
3 Loss of all toes of both feet through the metatarso phalangeal 40

joint
4 Loss of all toes of both feet proximal to the proximal inter 30

phalangeal joint
5 Loss of all toes of both feet distal to the proximal inter 20

phalangeal joint
6 Amputation at hip 90
7 Amputation below hip with stump exceeding 12.70 cms in 80

length measured from tip of greater trochanter
8 Amputation below hip with s tump exceeding 12.70 cms in 70

length measured from tip of greater trochanter but not beyond
middle thigh
9 Amputation below middle thigh to 8.89 below knee 60
10 Amputation below knee with stump exceeding 8.89 but not 50

exceeding 12.70
11 Amputation below knee with stump exceeding 12.70 50
12 Amputation of one foot resulting in end bearings 50
13 Amputation of one foot proximal to the metatarso phalangeal 50

joint
14 Loss of all toes of one foot through the metatarso phalangeal 20

joint
● OTHER INJURIES
15 Loss of one eye, without complications the other being normal 40
16 Loss of vision of one eye without complications or dis? 30

gurement of eye ball the other being normal
26. A. A loss of partial vision of one eye 10
● FINGERS OF RIGHT OR LEFT HAND INDEX F INGER
17 Whole 14
18 Two phalanges 11
! !444
19 One phalange 9
20 Guillotine amputation of tip without loss of bone 5
● MIDDLE FINGER
21 Whole 12
22 Two phalanges 9
23 One phalanges 7
● RING LITTLE FINGER
25 Whole 7
26 Two phalange 6
27 One phalange 5
● TOES OF RIGHT OR LEFT FOOT GREAT TOES
29 Through metatarso phalangeal joint 14
30 Part with some loss of bone 3
● ANY OTHER TOE
● TOW TOES OF ONE FOOT EXCLUDING GREAT TOE
● THREE TOES OF ONE FOOT EXCLUDING GREAT TOE
● FOUR TOES OF ONE FOOT EXCLUDING GREAT TOE
! !445
Note : Compete and permanent loss of the use of any limb or equivalent to the
member referred to in this schedule shall be deemed to be loss of that
limb.
Hospital Industry is at present covered by the workmen's

compensation Act, of 1923.
• Occupational Diseases :
The schedule No. 3 of the workmen's compensation Act, of 1923 gives the
list of occupational diseases. This schedule should be read and
remembered along with the provisions of section 3(2), (2-A), (3), (4) &
(5).
• Employer not liable for compensation

Section 3 of the Act speaks of employer's liability for compensation with
some exceptions enumerated therein.
Exceptions:
1. In respects of any injury which does not result in total or partial

disablement of the workman for a period exceeding three days.
2. In respect of any injury (injury Not resulting in Death) (OR permanent

total disablement) caused by an accident which is directly attributable to
i. Workman under influence of drink, drugs or
ii. Willful disobedience of the workman to an order expressly given, or

to rule expressly framed, for the purpose of securing the safety of
workman, or
iii. The willful removal or disregard by the workman of any safety guard
or other device which he knew - to have been provided for the
purpose of securing the safety of workman.
! !446
8.3 INDUSTRIAL DISPUTES ACT, 1947:
The Industrial Disputes Act was enacted in 1947. This Act makes provision
for the investigation brining about harmony and cordial relationship
between the employers and employees.
The main objectives of the Industrial Disputes Act are: -
• To prevent and settle industrial disputes between the employers and

workmen.
• To secure and preserve amity and good relations between the employers
and workmen.
• To promote good relations through an external machinery of conciliation,

Courts of Inquiry, Labor Courts, Industrial Tribunals and National
Tribunals.
• To prevent illegal strikes and lock-outs.
• To provide relief to workmen in the matter of lay-off
8.3.1. DEFINITIONS:
a. Industry [Sec.2 (j)]:
"Industry" means any business, trade, public sector undertaking,

manufacture or calling of employers and includes any calling service,
employment, handicraft, or industrial occupation or avocation of workmen.
b. Industrial Dispute [Sec.2 (k)]:
'Industrial dispute' means any dispute or difference between employers

and employees, employers and workmen, or workmen and workmen,
which is connected with (a) the employment or non-employment, or (b)
the terms of employment, or (c) the conditions of labor of any person.
The definition of 'industrial dispute' in Sec. 2(k) of the Industrial Disputes

Act, 1947 has four ingredients, and if all four ingredients are satisfied, the
! !447
dispute raised is an 'industrial dispute' which could validity is referred

under Sec. 10 to a Tribunal for adjudication. These four ingredients are -
a. there should be real and substantial dispute or difference;
b. the dispute or difference should be between
• employe and employer,

• employer and workmen, or
• workmen and workmen
c. the dispute or difference must be connected with the employment or

non-employment or terms of employment, or with the conditions of
labor of any person;
d. The dispute should relate to an industry as defined in Sec. 2(j).
c. Award [Sec.2 (b)]:
It means an interim or a final determination of any industrial dispute or of

any question relating thereto by any Labor Court, Industrial Tribunal or
National Tribunal. It also includes an arbitration award made under Sec.
10-A.
d. Continuous Service [Sec.25-B]:
A workman shall be said to be in continuous service for a period if he is, for

that period, in uninterrupted service, including service which may be
interrupted on account of -
• sickness, or
• authorized leave, or
• an accident, or
• a strike which is not illegal, or
• A lock-out or a cessation of work which is not due to any fault on the part
of the workmen.
! !448
e. Closure [Sec.2 (cc)]:
It means the permanent closing down of a place of employment or part

thereof.
f. Public Utility Service [Sec.2 (n)]:
It means -
i. any railway service or any transport service for the carriage of

passengers or goods by air;
ii. Any service in, or in connection with the working of, any major port or
dock.
iii. any section of an industrial establishment, on the working of which the

safety of the establishment or the workmen employed therein depends;
iv. any postal, telegraph, or telephone service;
v. any industry which supplies power, light or water to the public;
vi. any system of public conservancy or sanitation;
vii. Any industry specified in the First Schedule.
g. Strike [Sec.2 (q)]:
"Strike" means a cession of work by a body of persons employed in any

industry acting in combination; or a concerted refusal or a refusal under a
common understanding of any number of people who are or have been so
employed to continue to work or to accept employment.
The following points may be noted regarding the definition of strike:
i. Strike can take place only when there is a cession of work or refusal to
work by the workmen acting in combination or in a concerted manner.
ii. A concerted refusal or a refusal under a common understanding of any

number of persons to continue to work or to accept employment will
! !449
amount to a strike. A general strike is one when there is a concert of

combination of workers stopping or refusing to resume work. Going on
mass casual leave under a common understanding amounts to a strike.
For example it is often seen that resident doctor's goes on mass casual
leave over issues related to hike in monthly stipend.
If on the sudden death of a fellow-worker, the workmen acting in concert

refuse to resume work, it amounts to a strike (National Textile Workers'
Union Vs. Shree Meenakshi Mills (1951) II L. L. J. 516).
iii. The striking workman must be employed in an 'industry' which has not
been closed down.
iv. Even when workmen cease to work, the relationship of employer and
employee is deemed to continue albeit in a state belligerent suspension.
Types of Strike:
i. Stay-in, Sit-down, Pen-down or Tool-down Strike: In all such cases, the

workmen after taking their seats refuse to do work. All such acts on the
part of the workmen acting in combination, amount to a strike.
ii. Go-slow: Go-slow does not amount to strike, but it is a serious case of
misconduct.
iii. Sympathetic Strike: Cessation of work in the support of the demands of

workmen belonging to other employer is called a sympathetic strike.
The management can take disciplinary action for the absence of
workmen. However, in Ram lingam Vs. Indian Metallurgical Corporation,
Madras, 1964-I L.L.J.81, it was held that such cessation of work will not
amount to a strike since there is no intension to use the strike against
the management.
iv. Hunger Strike: Some workers may resort to fast on or near the place of
work or residence of the employer. If it is peaceful and does not result in
cessation of work, it will not constitute a strike. But if due to such an
act, even those present for work, could not be given work, it will
amount to strike (Pepariach Sugar Mills Ltd. Vs. Their Workmen).
! !450
v. Work-to-rule: Since there is no cessation of work, it does not constitute

a strike.
h. Lay-off [Sec.2 (kkk) ]:
'Lay-off' means the failure, refusal or inability of an employer to give

employment to a workman (a) whose name is borne on the muster-rolls of
his industrial establishment, and (b) who has not been retrenched. The
failure, refusal, or inability to give employment may be due to-
1. shortage of coal, power or raw materials, or

2. the accumulation of stocks, or
3. the breakdown of machinery, or
4. Natural calamity or for any other connected reasons.
Essentials of lay-off:
a. There must be failure or refusal or inability of the employer to continue

employees in his employment.
b. The employees laid off must be on the muster-rolls of the establishment

on the day of lay-off.
c. The failure, refusal or inability to give employment may be due to

shortage of raw materials or accumulation of stocks or breakdown of
machinery or natural calamity or some other reason.
d. The employees must not have been retrenched.
i. Lock-out [Sec.2 (i)]:
It means the temporary closing of a place of employment, or the

suspension of work, or the refusal by an employer to continue to employ
any number of persons employed by him. The word 'temporary' was added
to the definition by the Amendment Act of 1982.
Essentials of Loc-out:
The essentials of a loc-out are as follows:
! !451
a. There is a temporary closing of the place of employment, or suspension

or withholding of the work by the employer in some form.
b. There is an element of demands for which the place of employment is

locked-out or closed.
c. There is an intention to re-employ the workers if they accept the

demands.
j. Retrenchment [Sec.2 (00)]:
It means 'to end, conclude, or cease". The term as used in the Industrial
Disputes Act means the termination by the employer of the service of a
workman for any reason whatsoever, otherwise than as punishment
inflicted by way of disciplinary action.
'Retrenchment' however does not include:
• voluntary retirement of workman; or
• retirement of the workmen on reaching the age of superannuation if the

contract of employment between the employer and the workman
concerned contains a stipulation in that behalf; or
• termination of the service of the workman as a result of the non-renewal

of the contract of employment between the employer and the workman
concerned on its expiry or of such contract being terminated under a
stipulation in that behalf contained therein; or
• Termination of the service of a workman on the ground of continued ill-

health.
Thus the definition contemplated following requirements for retrenchment:
i. There should be termination of the service of the workman.
ii. The termination should be by the employer.
iii. The termination is not the result of punishment inflicted by way of

disciplinary action.
! !452
iv. The definition excluded termination of service on the specified grounds

or instances mentioned in it.
k. Settlement [Sec.2 (p)]:
"Settlement" means a settlement arrived at in the course of conciliation

proceeding and includes a written agreement between the employer and
workmen arrived at otherwise than in the course of conciliation proceeding
where such agreement has been signed by the parties thereto in such
manner as may be prescribed and a copy thereof has been sent to an
officer authorized in this behalf by the appropriate government and the
conciliation officer.
8.3.2. PROCEDURE FOR SETTLEMENT OF INDUSTRIAL DISPUTES:
The Act provides elaborate and effective machinery for bringing about
industrial peace by setting up various authorities for the investigation and
settlement of industrial disputes. These authorities can only promote
settlement of industrial disputes or inquire into them but cannot make any
which are binding on the parties. The various authorities are:
1. Works awards Committee (Sec.3)

2. Conciliation Officers (Sec.4)
3. Boards of Conciliation (Sec.5)
4. Courts of Inquiry (Sec.6)
5. Labour Courts (Sec.7)
6. Industrial Tribunals (Sec.7-A)
7. National Tribunals (Sec. 7-B)
1. Works Committee (Sec.3) :
In the case of any industrial establishment in which 100 or more workmen

are employed or have been employed on any day in the preceding 12
months, the appropriate Government may, by general or special order,
require the employer to constitute a Works Committee. The Committee
shall consist of representatives of employers and workmen engaged in the
establishment. The number of representative of workmen on the
Committee shall not be less than the number of representatives of the
employers. The representatives of the workmen shall be chosen in the
prescribed manner from among the workmen engaged in the establishment
! !453
and in consultation with their trade union, if any, registered under the
Trade Unions Act, 1926.
Powers and Duties:
It shall be the duty of the Works Committee to -
1. Promote measures for securing and preserving amity and good

relations between the employees and workmen and, to that end.
2. Comment upon matters of their common interest or concern, and
3. Endeavour to compose any material difference of opinion in respect of

such matters [Sec.3 (2)]. These matters are so wide-ranging as to
include welfare of workers, supervision of recreational facilities and
crèches and hospitals, their training, wages, hours of work, bonus,
gratuity, holidays with pay and working conditions including discipline,
promotions and transfers etc.
2. Conciliation Officers (Sec.4) :
The appropriate Government may, by notification in the Official Gazette,

appoint such number of persons as it thinks fit to be Conciliation Officers.
The duty of the Conciliation Officers shall be to mediate in and promote the
settlement of industrial disputes [Sec.4 (1)].
A Conciliation Officer may be appointed for a specified area or for specified

industries.
Duties:
1. In case of disputes, the Conciliation Officer may hold conciliation

proceedings.
2. The Conciliation Officer has to investigate the dispute and all matters
affecting the merits and the right settlement thereof.
3. If a settlement of the dispute is arrived at in the course of the

conciliation proceedings, the Conciliation Officer shall send a report
! !454
along with a memorandum of settlement signed by the parties to the

appropriate Government.
4. If no such settlement is arrived at, the Conciliation Officer shall as

soon as after the close of the investigation, send to the appropriate
Government a full report setting forth the steps taken by him for
ascertaining the facts and circumstances relating to the dispute for
bringing about a settlement thereof.
Powers:
1. A Conciliation Officer may for the purpose of inquiry into any existing
or apprehended industrial dispute, after giving reasonable notice,
enter the premises occupies by the establishment to which the
dispute relates.
2. A Conciliation Officer may call for and inspect any document which he
has ground for considering to be relevant to the industrial dispute or
to be necessary for the purpose of verifying the implementation of
any award or carrying out any other duty imposed on him under the
Act.
3. Boards of Conciliation (Sec.5) :
The Board shall consist of a chairman and 2 or 4 other members, as the

appropriate Government thinks fit. Where the parties to an industrial
dispute apply in the prescribed manner for a reference of the dispute to a
Board, the appropriate Government may at any time, by order in writing,
refer the dispute to a Board of Conciliation for promoting a settlement
thereof.
Duties:
1. It shall be the duty of the Board to bring about a settlement of the

dispute. It has to investigate the dispute and all matters affecting the
merits and the right settlement thereof.
2. To send a report and memorandum of settlement to the appropriate

Government.
! !455
3. To send a full report to the appropriate Government setting forth the

steps taken by the Board in case no settlement is arrived at.
4. The Board shall submit its report within 2 months of the date on
which the dispute was referred to it or within such shorter period as
may be fixed by the appropriate Government.
Powers:
1. A member of the Board may, after giving reasonable notice, enter the
premises occupied by any establishment to which the dispute relates.
2. According to the industrial dispute act 1947, the Boards of

Conciliation shall have the same powers as are vested in a Civil Court
namely :
• examining any person

• compelling the production of documents and material objects
• Issuing summons for the examination of witness.
4. Courts of Inquiry (Sec.6) :
The appropriate Government may constitute a Court of Inquiry basing on

the application made by the parties to an industrial dispute, for inquiring
into any matter appertaining to be connected with or relevant to an
industrial dispute.
Duties:
1. A Court shall inquire into the matters referred to it and submit its
report within a period of 6 months.
2. A Court has to abide by the principle of fair play and justice.
Powers:
A member of a Court has the power to enter into premises and it has the
same powers as vested in a Civil Court.
! !456
5. Labor Courts (Sec.7) :
The appropriate Government may constitute one or more Labor Courts for
adjudication of industrial disputes relating to any matters specified in the
Second Schedule. These Courts shall also perform such other functions as
many are assigned to them.
The Presiding Officer of a Labor Court must be
a. Judge of High Court

b. District Judge for a period not less than 3 years
c. held any judicial office in India for not less than 7 years
d. less been the Presiding Officer of a Labor Court for not less than 5
years
Duties:
1. To adjudicate upon industrial disputes relating to matters specified in

the Second Schedule.
2. To give award within the period specified in the order.
Powers:
A member of a Court has the power to enter into premises and it has the
same powers as vested in a Civil Court.
Where an industrial dispute has been referred to a Labour Court, the
appropriate Government may by order prohibit the continuance of any
strike or loc-out in connection with such dispute which may be in existence
on the date of the reference.
6. Industrial Tribunals (Sec.7-A) :
The appropriate Government may constitute one or more Industrial

Tribunals for the adjudication of industrial disputes relating to any matter,
whether specified in the Second Schedule or the Third Schedule and for
performing such other functions as may be assigned to them under this Act
The Presiding Officer of a Labor Court must be a Judge of High Court; or
District Judge for a period not less than 3 years; or held any judicial office
! !457
in India for not less than 7 years; or has been the Presiding Officer of a
Labor Court for not less than 5 years.
Duties:
1. To adjudicate upon industrial disputes relating to matters specified in

the Second Schedule or Third Schedule.
2. To give award within the period specified in the order.
Powers:
1. A member of a Court has the power to enter into premises and it has
the same powers as vested in a Civil Court.
2. Power to appoint assessors to advise it in the proceedings.
3. Power to award costs.
7. National Tribunals (Sec. 7-B) :
The Central Government may constitute one or more National Industrial

Tribunals for the adjudication of industrial disputes which, in the opinion of
the Central Government, involve questions of national importance or are of
such a nature that industrial establishments situated in more than on State
are likely to be interested in, or affected by, such disputes.
A national Tribunal shall consist of one person only to be appointed by the

Central Government. He must be a Judge of a High Court.
Where any reference has been made under Sec. 10(1-A) to a National
Tribunal, then notwithstanding anything contained in the Act, no Labour
Court or Tribunal shall have jurisdiction to adjudicate upon any matter
which is under adjudication before the National Tribunal.
Duties:
1. Where an industrial dispute has been referred to a National tribunal for

adjudication, it shall hold its proceedings expeditiously. Further, it shall,
! !458
within the period specified in the order referring such industrial dispute,
submit its award to the appropriate Government.
2. The award shall be in writing and shall be signed by the presiding officer
of the National Tribunal. It shall, within a period of 30 days from the
date of its receipt by the appropriate Government, be published in such
manner as the appropriate Government thinks fit.
Powers:
1. A member of a Court has the power to enter into premises and it has
the same powers as vested in a Civil Court.
2. Power to appoint assessors to advise it in the proceedings.
3. Power to award costs.
AWARD AND SETTLEMENT:
An award is an interim or a final determination of any industrial dispute of

any question relating thereto by any Labor Court, Industrial Tribunal or
National Tribunal. It also includes an arbitration award made under Sec.
10-A.
The report of a Board of Conciliation or Court of Inquiry shall be in writing

and shall be signed by all the members of the Board or Court, as the case
may be.
The award of a Labour Court or Industrial Tribunal or National Tribunal shall

be in writing and shall be signed by its presiding officer.
The following fact about the award as per industrial dispute acts 1947
a. Award shall be published within a period of 30 days from the date of its
receipt by the appropriate Government
b. An award shall become ineffective on the expiry of 30 days from the

date of its publication under Sec. 17
! !459
c. The award may be rejected or modified within 90 days from the date of
its publication Persons on Whom Settlements and Award are Binding
(Sec.18):
1. A settlement arrived at by agreement between the employer and

workmen are binding on the parties to the agreement.
2. An arbitration award is binding on the parties to the agreement.
3. A settlement arrived at in the course of conciliation proceedings shall

be binding on all parties to the dispute.
Period of Operation of Settlement and Awards (Sec.19):
A settlement arrived at in the course of conciliation proceedings shall come

into operation on such date as is agreed upon by the parties to the dispute,
and if no date is agreed upon, on the date on which the memorandum of
the settlement is signed by the parties to the dispute.
An award shall remain in operation for a period of one year from the date
on which the award becomes enforceable.
As per industrial dispute acts 1947, Any person who commits a breach of
any term of any settlement or award, which is binding on him, shall be
punishable with imprisonment for a term which may extend to 6 months,
or with fine, or with both.
STRIKE AND LOCK-OUTS:
Strike means -
i. a cessation of work by a body of person employed in any industry acting

in combination; or
ii. a concerted refusal of any number of person who are or have been so
employed to continue to work or to accept employment; or
iii. Refusal under a common understanding of any number of such people

to continue to work or to accept employment.
! !460
Lock-out means the temporary closing of a place of employment, or the

suspension of work, or the refusal by an employer to continue to employ
any number of person employed by him. The word 'temporary' was added
to the definition by the Amendment Act of 1982.
Prohibition of Strikes and Lock-outs (Secs.22 and 23):
1. Strike in a public utility service. No person employed in a public utility

service shall go on strike in breach of contract -
a. Without giving to the employer notice of strike. Within 6 weeks before

striking; or
b. within 14 days of giving such notice; or
c. before the expiry of the date of strike specified in any such notice as
aforesaid; or
d. During the pendency of any conciliation proceedings before a

Conciliation Officer and 7 days after the conclusion of such
proceedings.
A strike notice is valid only for 6 weeks.
Clause (b) ensues that there is enough prior warnings before the workmen
actually go on strike.
2. Lock-out in public utility service. No employer carrying on in a public

utility service shall lock-out of his workmen -
a. without giving to them notice of loc-out, within 6 weeks before

locking-out; or
b. within 14 days of giving such notice; or
c. before the expiry of the date of lock-out specified in any such before
as aforesaid; or
! !461
d. During the pendency of any conciliation proceedings before a

Conciliation Officer and 7 days after the conclusion of such
proceedings.
A lock-out notice is valid only for 6 weeks.
Clause (b) ensues that there is enough prior warning.
The notice of the loc-out shall be given in such manner as may be

prescribed [Sec.22 (5)].
Notice of Loc-out or Strike not necessary in certain cases:
The notice of lock-out or strike shall not be necessary where there is

already in existence a strike, or as the case may be, lock-out in the public
utility service. But the employer shall send intimation of such lock-out or
strike on the day on which it is declared, to such authority as may be
specified by the appropriate Government either generally or for a particular
area or for a particular class of public utility services [Sec.22(3)].
Intimation of Notices of Strike or Loc-out to be given within 5 days:
If on any day an employer receives from any person employed by him any
notices of strike or gives to any person employed by him any notices of loc-
out, he shall within 5 days thereof report to the appropriate Government or
to such authority as that Government may prescribed the number of such
notices received or given on that day [Sec.22 (6)].
Illegal Strikes and Lock-outs (sec. 24):
A strike or a lock-out shall be illegal it -
• it is commence or declared in contravention of Sec. 22 to Sec. 23; or
• It is continued in contravention of an order made under Sec. 10(3) or

Sec.10-A (4-A).
! !462
Penalties for Illegal Strikes and Lock-outs:
1. Penalty for illegal strikes [Sec.26 (1)]. Any workman, who commences,
continues or otherwise acts in furtherance of a strike which is illegal,
shall be punishable with imprisonment for a term which may extend to 1
month, or with fine which may extend to Rs. 50, or with both.
2. Penalty for illegal lock-out [Sec.26 (2)]. Any employer, who commences,
continues or otherwise acts in furtherance of a lock-out which is illegal,
shall be punishable with imprisonment for a term which may extend to 1
month, or with fine which may extend to Rs. 1,000 with both.
3. Penalty for instigation, etc.[Sec.27]: Any person who instigates or

incites others to take part in, or otherwise acts in furtherance of a strike
or lock-out which is illegal, shall be punishable with imprisonment of a
term which may extend to 6 months, or with fine which may extend to
Rs. 1,000 or with both.
4. Penalty for giving financial aid for illegal strikes and lock-outs [Sec. 28].
Any persons who knowingly expends or applies any money in direct
furtherance or support of any illegal strike or lock-out shall be
punishable with an imprisonment for a term which may extend to 6
months, or with fine which may extend to Rs. 1,000 or with both.
LAY-OFF:
'Lay-off' means the failure, refusal or inability of an employer to give

employment to a workman (a) whose name is borne on the muster-rolls of
his industrial establishment, and (b) who has not been retrenched. The
failure, refusal, or inability to give employment may be due to-
1. shortage of coal, power or raw materials, or
2. the accumulation of stocks, or
3. the breakdown of machinery, or
4. Natural calamity or for any other connected reasons.
! !463
A lay-off shall be deemed to be illegal from the date on which the workmen
had been laid off-
a. where no application for permission under Sec.25-M(1) is made, or
b. where no application for permission under Sec.25-M(3) is made, within

the period specified therein, or
c. Where the permission for any lay-off has been refused.
The workmen in the above cases shall be entitled to all the benefits under
any low for the time being enforced as if they had not been laid-off.
The penalty for illegal lay-off is imprisonment up to 1 month or fine up to
Rs. 1,000 or both.
RETRENCHMENT:
It means 'to end, conclude, or cease". The term as used in the Industrial
Disputes Act means the termination by the employer of the service of a
workman for any reason whatsoever, otherwise than as punishment
inflicted by way of disciplinary action.
Conditions precedent to Retrenchment of Workmen (sec.25-F):
No workman employed in any industry who has been in continuous service

for not less than 1 year under an employer shall be retrenched by that
employer until -
a. The workman has been given 1 month's notice in writing. The notice
must indicate the reason for retrenchment. Further the workman cannot
be retrenched until the period of notice has expired, or the workman
has been paid in lieu of such notice wages for the period of the notice
[Sec.25-F (a)]. This condition is mandatory and non-compliance with it
will render retrenchment illegal.
b. The workman has been paid, at the time of retrenchment, compensation

which is equivalent to 15 days average pay for every completed year of
continuous service or any part thereof in excess of 6 months.
! !464
c. Notice in the prescribed manner is served on the appropriate

Government or such authority as may be specified by the appropriate
Government by notification in the Official Gazette.
Procedure for Retrenchment (Sec.25-G):

The employer shall ordinarily retrench the workman who was the last
person to be employed in that category, unless for reasons to be recorded,
the employer retrenches any other workman. Principle of 'last come, first
go' applies to the rule of retrenchment.
Re-employment or Retrenched Workmen (Sec.25-H):

Where any workmen are retrenched, and the employer proposes to take
into his employ any persons, he shall give an opportunity to the retrenched
workmen to offer themselves for re- employment. The retrenched
workmen who offer themselves for re-employment shall have preference
over other persons. The offer shall be made in such manner as may be
prescribed.
Transfer and closing down of undertakings:

Sometime the ownership or management of an undertaking is transferred,
whether by agreement or by operation of law, from the employer in
relation to that undertaking to a new employer. In such a case, every
workman who has been in continuous service for not less than 1 year in
that undertaking immediately before such transfer shall be entitled to
notice and compensation in accordance with the provisions of Sec.25-F, as
of the workman had been retrenched.
Compensation to workman in case of closing down of undertakings

(Sec.25-EFF):
Where an undertaking is closed for any reason, whatsoever, every

workman who has been in continuous service for not less than 1 year in
that undertaking immediately before such closure shall be entitled to notice
and compensation as if the workman had been retrenched.
! !465
8.4 TRADE UNION ACT, 1926:
The law relating to the registration of trade unions and certain other
matters is contained in the Trade Unions Act, 1926. The Act came into
force on 1st June, 1927
The objectives of the Trade Unions Act, 1926 are
a. to regulate conditions governing the registration of trade unions;

b. to regulate Obligations imposed upon a registered trade union and
c. to regulate rights and liabilities of registered trade unions
8.4.1. DEFINITIONS:
Trade union [Sec.2 (h)]:
It means any combination, whether temporary or permanent, formed

primarily for the purpose of
• Regulating the relations

• between workmen and employers, or
• between workmen and workmen, or
• between employers and employers, or
• For imposing restrictive conditions on the conduct of any trade of
business, and
• It includes any federation of two or more trade unions.
Registered Trade Union [Sec.2 (e)]:

It means a trade union registered under the Act.
Trade Dispute [Sec.2 (g)]:
It means any dispute between -
• employers and workmen, of

• workmen and workmen, or
• employees and employers, which is connected with
i. the employment or non-employment, or

ii. the terms of employment, or
! !466
iii. The conditions of labour, of any person.
'Workmen' means all persons employed in trade or industry whether or not

in the employment of the employer with whom the trade dispute arises.
8.4.2. REGISTRATION OF TRADE UNIONS:
Mode of Registration (Sec.4):
Any seven or more members of a trade union may apply for registration by
subscribing their names to the rules of the trade union and by otherwise
complying with other requirements in relation to registration under the Act
[Sec.4(1)].
Application for Registration:
Every application for registration of a trade union shall be made to the

Registrar along with the fee as prescribed under Regulation 8 (Rupees five
at present) and shall be accompanied by a copy of the rule of the Trade
Union and a statement of the following particulars :
• the names, addresses and occupations of the members making the

application;
• the name of the trade union and the address of its head office; and
• the titles, names, ages, addresses and occupations of the officers of the
trade union (Sec.5)
Where a trade union has been in existence for more than one year before
the making of an application for its registration in Form A, a general
statement of its assets and liabilities prepared in the prescribed from has
also to be delivered to the Registrar, together with the application.
8.4.3. Rules of Trade Union (Sec.6):
A trade union is entitled to registration only if its executive is constituted in

accordance with the provisions of the Act and its rules provide for the
following matters, namely:
! !467
a. The name of the trade union;
b. The whole of its objects;
c. The whole of the purposes for which the general funds of the trade
union shall be applicable under Sec.15.
d. The maintenance of a list of the members of the trade union and

adequate facilities for the inspection thereof by the office bearers and
members of the trade union.
e. The admission of ordinary members who shall be persons actually

engaged or employed in the industry with which the trade union is
connected, and also the admission of the number of honorary or
temporary office-bearers to form the executive of the trade union;
f. The payment of a subscription by the members of the trade union which

shall be as prescribed by the Act;
g. The conditions under which any members shall be entitled to any benefit
assured by the rules and conditions under which fines may be imposed
on the members;
h. The manner in which the rules shall be amended, varied or rescinded;
i. The manner in which the members of the executive and other office-
bearers of the trade union shall be appointed and removed;
j. The safe custody of the funds of the trade union, and annual audit of
the accounts thereof, and facilities for the inspection of the account
books by the office-bearers and members of the trade union; and
k. The manner in which the trade union may be dissolved.
! !468
8.4.4. Registration (Sec.8):
The Registrar, on being satisfied that the trade union has complied with all
the requirements of this Act in regard to registration, shall register the
trade union. He shall register the trade union by entering in a register; to
be maintained in such from as may be prescribed, the particulars relating
to the trade union contained in the statement accompanying the
application.
Certificate of Registration (Sec.9):
The Registrar, on registering a trade union under Sec.8, shall issue a

Certificate of Registration in the Form 'C', which shall be conclusive
evidence that the trade union has been duly registered under the Act.
Cancellation of Registration (Sec.10):
According to Sec.10, the Registrar may withdraw or cancel the Certificate

of Registration on the following grounds:
a. Certificate has been obtained by fraud or mistake.
b. Trade Union has ceased to exist.
c. Trade Union has willfully and after notice from the Registrar contravened
any provision of the Act.
d. Trade Union has allowed any rule to continue in force which is

inconsistent with any provision of the Act.
e. Trade Union has rescinded any rule providing for any matters, provision
for which is required by Section 6.
f. Trade Union has on its own, applied for its withdrawal or cancellation.
Provided that before the Certificate is withdrawn or cancelled, the Registrar

shall give at least two months notice in writing, specifying the grounds on
which it is proposed to take action. In absence of previous notice any
proceeding for cancellation or withdrawal of registration is illegal
(Radheyshyam Singh Vs Bata Majdoor Union, 1977 Lab IC 1487). However,
! !469
no notice is requiring when application has been made by Trade Union

itself.
Further, the Registrar should satisfy himself that the withdrawal or

cancellation of registration has been approved by the general meeting of
the Trade Union or has the approval of the majority of the members. For
this he may call or examine any person or particulars (Sec.6).
Members of Trade Union:

Any person can become a member of a Trade Union. Ordinarily the
members of a Trade Union must be person who are actually engaged in the
trade or industry with which the union is concerned. But there is nothing in
the Act which debars a Trade Union from admitting outsiders as its
members. A person does not have the absolute right to be admitted as a
member of the Trade Union. He may, however, claim this right if there is an
express provision in the constitution of the Union that no one having the
requisite qualification can be refused membership.
Qualification for becoming Members of Trade Union:

Any person who has attained the age of 15 years may be a member of a
registered trade union. But he cannot be an office-bearer until he attains
the age of 18 years. It is only person engaged in trade or business (which
includes an industry) who can form a trade union or become members of a
trade union.
8.4.5. Rights and privileges of a trade union:
1. Body Corporate (Sec.13):

Every registered trade union is a body corporate by the name under which
it is registered and has perpetual succession and a common seal with
power to acquire and hold both movable and immovable property and to
contract and can by the said name sue and is sued.
2. Separate Fund for Political Purposes (Sec.16):

A registered trade union may constitute a separate fund, from
contributions separately levied for or made to that fund, from which
payments may be made for the promotion of the civic and political
interests of its members.
! !470
3. Immunity from Criminal Proceedings (Sec.17):

An office-bearer or member of a registered trade union shall not be liable
to punishment under Sec.120-B(2) of the Indian Penal Code, 1860 in
respect of any agreement made between the members for the purpose of
furthering any such object of the trade union on which general funds may
be spent.
4. Immunity from Civil Suits (Sec. 18):

A suit or other legal proceeding shall not be maintainable in any Civil Court
against any trade union or any office-bearer or member thereof in respect
of any act done in contemplation or furtherance of a trade dispute to which
a member of the trade union is a party [Sec.18(1)].
Thus, Section 18 protects the Trade Union and its office-bearers or

members in respect of certain specified tortuous act committed in
contemplation or furtherance of a trade dispute.
8.4.6. FUNDS OF A REGISTERED TRADE UNION:
The Act provides for two types of Funds, Viz., (i) General Funds and (ii)
Funds for political purpose.
General Funds:
According to Section 15, the general funds of a registered trade union shall
be spent only for the following purposes:
1. The payment of salaries, allowances and expenses to office-bearers of

the trade union.
2. The payment of expenses for the administration of the trade union,

including audit of the accounts of the general funds of the trade union.
3. The expenses in prosecution or defense of any legal proceeding to which

the trade union or any member thereof is a party, undertaken for the
purpose of securing or protecting any rights of the trade union.
4. The conduct of trade disputes on behalf of the trade union or any

members thereof.
! !471
5. The compensation of members for loss arising out of trade disputes.
6. Allowances to members or their dependants on account of death, old

age sickness, accidents or unemployment of such members.
7. The issue of, or the undertaking of liability under, polices of assurance

on the lives of members, or under polices insuring members against
sickness, accident or unemployment.
8. The provision of educational, social or religious benefits for members

(including the payment of the expenses of funeral or religious
ceremonies for deceased members) or for the dependants of members;
9. The upkeep of periodicals published mainly for the purpose of discussing

questions affecting employees or workmen as such.
10.The payment of contributions to any cause intended to benefit workmen

in general. The expenditure in respect of such contributions in any
financial year shall not at any time during that year be in excess of
1/4th of the combined total of the gross income which has up to that
time accrued to the general funds of the trade union during that year
and of the balance at the credit of those funds at the commencement of
that year.
11.Subject to any conditions contained in the notification, any other object

notified by the appropriate Government in the Office-Gazette.
If the union funds are spent on any objects other than those enumerated in
Sec.15, the expenditure will be unlawful and ultra virus the Act. The union
can be restrained by injection from applying its funds for any such object.
Political Fund of Registered Trade Union (Sec.16):
A registered trade union may constitute a separate fund from which

payments may be made for the promotion of the civic and political
interests of its members [Sec.16 (1)]. Such fund can be used in
furtherance of the following objects, viz.
a. The payment of any expenses incurred either directly or indirectly by a

candidate or prospective candidate for election as a member of any
! !472
legislative body constituted under the Constitution or of any local

authority; or
b. The holding of any meeting or the distribution of any literature or

documents is support of any such candidate or prospective candidate, or
c. The maintenance of any person who is a member of any legislative body

constituted under the Constitution or for any local authority; or
d. The holding of political meetings of any kind, or the distribution of

political literature or political documents of any kind.
8.4.7. DISSOLUTION OF TRADE UNION:
When the trade union is dissolved, notice of the dissolution signed by 7

members and by the Secretary of the trade union shall be sent to the
Registrar within 14 days of the dissolution. If the Registrar is satisfied that
the dissolution has been affected in accordance with the rules of the trade
union, who shall register the fact of dissolution. The dissolution shall take
effect from the date of such registration [Sec.27 (1)].
On dissolution, where the rules do not provide for distribution of the funds
of the Trade Union, the Registrar shall distribute the fund amongst
members in such manner as may be prescribed. Under the Trade Union
Regulations, the Registrar shall divide the funds in proportion to the
amounts contributed by the members by way of subscription during their
membership (Regulation 11).
! !473
Summary:
The factories Act, 1948 came into force on the 1st day of April,1949.Its
object is to regular the conditions of work in manufacturing establishments
which come within the definition of the term' factory's used in the Act. , a
factory is a premises whereon 10 or more persons are engaged if power is
used, or 20 or more persons are engaged if power is not used, in a
manufacturing process. Inspector appointed under the Act is an Inspector
for all purposes of this Act. Assignment of local area to an Inspector is
within the discretion of the State Government. The State Government may
appoint qualified medical practitioners to be certifying surgeons for
specified local limits or factories [Sec. 10(1)].a certifying surgeon may,
with the approval of the State Government, authorize any qualified medical
practitioner to exercise any of his powers [Sec.10(2)]. Section 49 of the
Act imposes statutory obligation upon the occupier of the factory of the
appointment of Welfare Officer/s wherein 500 or more workers are ordinary
employed.
Section 40-B empowers the State Government for directing an occupier of

factory to employ such number of Safety Officers as specified by it where
more than 1,000 workers are employed or where manufacturing process
involves risk of bodily injury, poisoning or disease or any other hazard to
health of the persons employed therein.
Chapter III (Sec. 11 to 20) of the Act deals with the provisions ensuring
the health of the workers. These provisions are Cleanliness (Sec.11) ,
Disposal of Wastes and Effluents (Sec.12), Ventilation and Temperature
(Sec.13) ,Dust and Fume (Sec.14) ,Artificial Humidification (Sec.
15) ,Overcrowding (Sec.16) ,Lighting (Sec.17) ,Drinking Water (Sec.
18),Latrines and Urinals (Sec.19) ,Spittoons (Sec.20). Chapter VI contains
provisions for regulating working hours for the adult workers
Extra Wages for Overtime (Sec.59):Wages at twice the ordinary rate :

Where a worker works in a factory for more than 9 hours in a day or more
than 48 hours in any week, he shall in respect of overtime work be entitled
to wages at the rate of twice his 'ordinary rate of wages’
Workmens Compensation act, 1923 - This is a central Act. It provides

for the compensation to be paid to the workers, for personal injury,
including death, suffered by them on account of accidents arising out of
! !474
and in the course of employment. The general principle is that

compensation should ordinarily be given to workmen who sustained
personal injuries by accidents arising out of and in the course of their
employment, compensation will also be given in certain limited
circumstances for diseases.
Under Section 3 of the Workmen's Compensation Act, the Employer is

liable for payment of compensation, if personal injury is caused to a
workman by accident arising out of and in the course of his employment,
the employer is liable to pay compensation as per the calculations.
Hospital Industry is at present covered by the workmen's compensation

Act, of 1923.
Section 3 of the Act speaks of employer's liability for compensation with

some exceptions enumerated therein is:
1. In respects of any injury which does not result in total or partial

disablement of the workman for a period exceeding three days.
2. In respect of any injury (injury Not resulting in Death) (OR permanent

total disablement) caused by an accident which is directly attributable
to
i. Workman under influence of drink, drugs or
ii. Willful disobedience of the workman to an order expressly given,

or to rule expressly framed, for the purpose of securing the safety
of workman, or
iii. The willful removal r disregard by the workman of any safety

guard or other device which he knew - to have been provided for
the purpose of securing the safety of workman.
! !475
INDUSTRIAL DISPUTES ACT, 1947 -
The Industrial Disputes Act was enacted in 1947. This Act makes provision
for the investigation brining about harmony and cordial relationship
between the employers and employee. The various authorities are Works
Committee (Sec.3) , Conciliation Officers (Sec.4) ,Boards of Conciliation
(Sec.5) , Courts of Inquiry (Sec.6) , Labour Courts (Sec.7) , Industrial
Tribunals (Sec.7-A)National Tribunals (Sec. 7-B)
TRADE UNION ACT, 1926 - The law relating to the registration of trade
unions and certain other matters is contained in the Trade Unions Act,
1926. The Act came into force on 1st June, 1927. The object of the Act is
to regulate conditions governing the registration of trade unions;
obligations imposed upon a registered trade union and rights and liabilities
of registered trade unions. When the trade union is dissolved, notice of the
dissolution signed by 7 members and by the Secretary of the trade union
shall be sent to the Registrar within 14 days of the dissolution
Review Questions:
1. Explain the Chapter III (Sec. 11 to 20) of the Act which deals with the
provisions ensuring the health of the workers under Factories Act, 1948.
2. Explain the applicability of Workmen compensation act 1923, for Health

care industry
3. Describe various authorities under Industrial Disputes Act, 1947
4. Explain different funding system of Trade Union Act, 1926
! !476
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
! !477
CONSUMER PROTECTION ACT, 1986
Chapter 9
Consumer Protection Act, 1986
9.0 Consumer Protection Act, 1986
9.1 Hospital and COPRA
9.2 Rights of consumer
9.3 Consumer Dispute redressal system
9.4 COPRA and hospital administrator
! !478
9.0 CONSUMER PROTECTION ACT, 1986:
Consumerism spreads from United States of America. The pioneer for this
movement was Ralph Nader, who tried to bring the light the major
problems that the consumer faces in their day to day activities and how
they are exploited by the manufactures, dealers, traders or retailers. The
International Organization of Consumer Unions came into force in 1960 at
Hague, but it was J. F. Kennedy who after delivering his message to the
U.S. Congress made this movement much stronger in 1962. The
importance of this movement rose steadily since then and in the year
1983, it was decided that 15th March would be observed as the ‘World
Consumer Day’ every year and it has been held as such in all the following
years. In India, during the 19th century, the consumer are the distinct
group of peoples who needs protection from the hands of sellers, who are
using various means and tactics to exploit and extract money from these
vulnerable class of people as most of the people of India are illiterate, not
aware of their basic civil rights and most of them lives below poverty line.
Consumer protection act was enacted by the parliament of India on

24.12.1986. Consumer Protection Act (COPRA), 1986 is one of the dynamic
and radical pieces of socio-economic legislation enacted by the Parliament
of India since Independence. This act with 35 sections and 4 chapters is for
the promotion and protection of the Consumers. It deals with the
followings issues related for the rights of consumer’s, which includes Right
to safety, Right to information, Right to choose, Right to be heard, Right of
redressal and Right to consumer education. Consumer Protection Councils
at Central and State level are constituted to safeguard consumer rights.
The Act was amended in 1993.
! !479
9.1 HOSPITALS AND COPRA:
Important definition related to CPA
a. Complainant means
• Any allegation, in writing made by a complaint that the service hired or

availed of by him suffers from the deficiency in any respect. In the
medical field, the complain can be made by patient or their relatives,
towards the doctor or the hospital related to the quality of medical
attention exerted by them. For example severe blood transfusion reaction
due to the mis-matched use of blood sample, which endangered the life
of the patient
b. consumer means
Any person who hires or receives different range of services for

consideration which has been paid or promised or partly paid and partly
promised to receive the same. In the health care, if the patient is paying
for the medical & health care attention, he expect as consumer to get
medical service with high degree of attention and sincerity. This is the
reason why in the hospital is now charging the medical bills, which is based
on the bed charges, paid by the patients. So the patients who are admitted
in deluxe room will naturally expect high degree of medical attention as
compared to the patients admitted in the general & economy class of bed.
Similarly the patients admitted in ICCU& CCU, will expect strict
maintenance of the vitals of the patients by medical and medical staffs.
c. comments / consideration:-
• Consideration means fees/ payment. Fees may have been fully paid in
cash or cheques or undertaking that it will be paid, which is accepted by
doctors / hospitals. For example many hospitals are paying cashless
services to different insurance agencies, through their TPA. In such
cases, the insurance agencies select and recognizes many hospitals and
nursing homes in peripheral preferred network hospitals, the names of
which is given to their insured clients and their TPA. After the patients
get admitted in their Panel hospitals, within 24 hours of the admission,
they inform their TPA.
! !480
• A person who receives medical treatment in government or charitable

hospital, which provides treatment to one and all free of cost, is not a
consumer. All patients irrespective of their paying capacity, are treated
free of cost, so the patients who receives the treatment, will not be
considered as consumer.
• Where as in some hospitals, few person who receives treatment free of

cost, where as to some patients charges are levied. So in such cases,
although the treatment is given free of cost to some patients, all the
patients who take treatments either as free patients or paid patients, will
be considered as consumers.
• In case of death of a patient who is a consumer, legal heirs of the

decreased will be considered as consumer. If the payment has been
made by a person who is not a legal heirs of the deceased he too will
considered as consumer.
• Three words used in explaining CPA are
a. Deficiency
b. Person
c. Service
1. Deficiency:- any fault, imperfection, shortcoming in the medical service.

For example a gynecologist leaving behind the mop in the abdomen,
while doing LSCS operation. In this, a medical negligence case is filed
on the treating doctor, as he or she did their work imperfectly.
2. Person:- any patients who comes for the treatment, visits the doctors,
after hearing his name and fame due to his surgical expertization and
his knowledge. There has been few incidences where patient were
operated by junior doctors, and on table the complication were not
managed adequately, which resulted in severe bodily injury or death.
3. Service:- there have been incidences of patient getting operated by

conventional surgical techniques and charged for advanced surgical
packages. For appendicectomy done by conventional technique, and
charged for laparoscopic packages. Similarly cataract Sx done by
conventional methods and charged for phacoemulsification packages.
! !481
• The Act clearly states that a consumer can bring up a dispute in the form
of a complaint before these Redressal Agencies. The Act further defines
that a consumer is a person who buys or hires any goods or services
whether the service may be commercial service or the patients care
service by paying for the service in terms of money, and makes use of
this purchased services for their personnel comforts, including service of
heath care organization and services of health professional, for the
investigation of the illness & treatment of the illness. The National
Consumer Disputes Redressal Commission recently upheld that the
medical profession can be taken to the Consumer’s court in the event of
any deficiency in the performance of service which is required at that
particular moment and for that particular class of patient. . The ruling
was delivered by a four member panel of the commission, headed by
Justice V. Balakrishna Eradi, hearing the review petition of the
Cosmopolitan Hospital Limited, Thiruvananthapuram and one of its senior
consultant in Orthopedics Dr. K. Venugopalan Nair. A similar senior
opinion has been taken by the Andhra Pradesh High Court, which in April
1992, ruled that services rendered by doctors are maintainable under the
COPRA, Justice M. N. Rao and Justice N. Neeladri Rao constituting a
division bench of the High Court gave the ruling while dismissing a batch
of writ prohibition petitions filed by various medical practitioners (private)
and the Indian Medical Association. (IMA).
Different judgments given by different courts across India are either in the
favor of COPRA or in some cases against the COPRA. For example the
judgments given by the Madras and Gujarat State Commissions established
that patients are not consumers and hence the COPRA is not applicable to
the medical profession. However the judgment of the Rajasthan State
Commission has contributed to some confusion as on one side it
acknowledge that the patients are not consumers and on the other hand,
states that those undergoing treatment in Government hospitals where the
service is provided free of cost thus there was no transaction of money, so
the COPRA cannot be evoke.
The medical fraternity is presently having a sigh of relief in the wake of the
mid-February (1994. Judgment of a Division bench of Madras High Court,
holding that the services to a patient by a doctor or hospital by way of
diagnosis and treatment cannot be constructed as ‘Service’ as defined in
Sec.2 (1) (0) of the COPRA Act. The court also held that a patient is not a
consumer within the meaning of the Act and judgment goes not totally
! !482
exonerate the doctors, since paramedical staff on whom the doctors

depend upon continue to come under the COPRA.
The verdict of the Supreme Court given in 1995 i.e. 13.11.95 is now crystal
clear when it has held that Hospital and Medical Profession are covered
under COPRA. The general public has lauded the Supreme Court order on
doctors. Even as doctors rush to get insurance cover and give to their
apprehensions in public forum, there is overwhelming public support for
the Supreme Court verdict bringing the medical profession within the ambit
of the Consumer Protection Act and making doctors liable for acts of the
negligence and incompetence. Ninety percent of the people polled in the
six major metros of Delhi, Bombay, Calcutta, Madras, Bangalore and
Hyderabad have welcomed the Supreme Court judgment. As many as 80
percent believe that since doctors today are money minded rather than
service-oriented, they should be prepared to pay compensation for
negligence just like any other commercial enterprise. There is little support
for the doctor’s argument that consumer forums are not competent to
assess highly technical medical issues. Sixty-one percent believe that the
Medical Council of India, the professional body for registering doctors and
investigating cases of negligence or incompetence, has not shown any
interest in disciplining errant doctors, Consumer forums would provide the
necessary recourse, feel 68 percent of the respondents.
The public is fully aware of the Supreme Court verdict and show implicit
faith in the judgment, equally significant is the large area of consensus in
the responses to the six questions asked. To the doctor’s fears voiced
recently that the public work ne encouraged to file frivolous cases and
subject doctors to blackmail, 60 per cent say this is unlikely. Significant, 55
per cent do not think there would be an increase in overall soon. They
seem to believe that there is enough room for doctors and clinics to absorb
any increase in cost.
So the arguments given by medical fraternity against the landmark

decision given by Supreme Court against doctors are
! !483
a. The doctor’s argument that consumer forums are not competent to

assess highly technical medical issues.
b. The doctor’s argument is that it will encourage to file frivolous cases

against this noble profession
c. The doctor’s argument that they will be subjected to blackmail, by the

patients and their relatives
9.2 CONSUMER DISPUTE REDRESSAL SYSTEM:
Consumer protection council (CPC):- are established @ national, state and

district level to increase consumer awareness.
a. Central CPC- established by central government, in which the minister

of consumer affairs is the chairman of the council.
b. State CPC
c. District CPC
For the redressal of the grievances of consumers of goods and services,

Consumer Disputes Redressal Agencies at District, State and national
Level have been constituted. These District Forums, State Commission
and National Commission, hierarchy of Consumer Disputes Redressal
Agencies at appropriate level are quasi judicial in nature, observe the
principles of natural justices, and award reliefs of specific in nature and
Compensation in appropriate cases. They are also empowered to impose
penalties for non-compliance, as shown in figure below:
! !484
District Forum
(Adjudicate matter Where the cost of compensation
is less than Rs. 5 Lakhs)
!
Fig: Consumer Dispute a Redressal System
Unlike traditional civil courts, the main objective of Consumer Protection

Act is to provide speedy, simple and inexpensive justice to consumers. As
per the Rules of COPRA, Consumer disputes are to be disposed within 90
days and in some cases where the goods require laboratory analysis; those
cases are to be disposed within 150 days. The procedure followed in
Consumer Forums is very simple. No court fee is to be paid. Any complaint
may be filed by an individual consumer, any recognized consumers having
the same interest at the Central or the State Government can file a
complaint.
! !485
The Act also now provide for institution of complaints for classification, i.e.
where more than one person or group of people are seeking similar kind of
relief in such cases one complaint can be filed on behalf of a group or
organization. This provision cover such cases as failure of a company to
refund deposits taken from a number of persons for purposes of providing
product or service, such as cancellation of train by railway authorities
causing inconvenience to number of passengers, or consumption of
adulterated food or a substandard drugs by a number of persons.
Punishment or orders passed by the District Forum, State Commission and

National Commission can be enforced to an extent that failure to comply
with the order can being about the punishment imprisonment up to three
years of fine Rs. 10,000/- or both.
One very important point to be kept in view by the complainant is that if

the complaint is found to be 'frivolous and vexatious' the complaint can be
directed to pay costs to the party complained against along with penalty
amount up to Rs. 10,000/-
9.4 COPRA AND HOSPITAL ADMINISTRATOR:
Still medical profession commands the same respect and nobility. One or
two black sheep from the fold ought to be taken to task. The Consumer
Protection Act is a necessary evil. The progressive doctors and right
thinking doctors must welcome the change to maintain the dignity,
decorum and nobility of the profession. The Consumer Protection Act tries
to maintain which features of medical profession
a. The dignity of the medical professions

b. Decorum of the medical professions
c. Nobility of the profession of the medical professions
Doctors practicing ethically and honestly should not have any reason to
fear.
It is for the Hospital Administrators to wake up the imminent throats posed

by the COPRA and to initiate following actions in the hospital that will take
the medical profession back to the glory and esteem it deserve. 
! !486
Besides these, continuing medical education program me - CME, for all

doctor and paramedical staff should be organized regularly. Only with the
active cooperation of the doctors and the enlightened section of the
society, the goals of consumer protection act will be achieved.
9.5 PREVENTIVE MEASURES - AGAINST CPA
A. at personal level
a. True & M.C.I. approved qualification

b. Refrain from the claims of guarantee of result
c. Communication -sympathetic attitude, answer all queries of patient
regarding treatment, prognosis, expenditure etc
d. Interpersonal behavior- courteous, polite
e. Academic & technical up gradation
f. Always observe medical ethics
! !487
B. prevention at practice level
a. The reasonable skill and care-deals with 3 aspects
b. Medical- always attends the sick and needy patients. Do not turn away
the patients, simply because the patients do not have the capacity to
pay.
c. Social - do not treat the patient based on the caste, creed and religion.
Always treat everyone on humanitarian grounds.
d. Legal - always preserve the medico-legal register. Do not do

postmortem without the receiving the order from the local police.
e. Proper documentation- makes sure that your hand writing is legible.

Always sign the doctor's note and the discharge summary. Always
preserve the patients consent form, who has undergone operative
procedures.
C. prevention by professional indemnity
a. Insurance cover - doctor's who are in the private practice must sign
indemnity bond, which gives then protection legally and money wise, in
the cases of professional mishap.
b. Always get associated with local medical association -like with local IMA.
Ophthalmologist in Mumbai getting registered with Bombay ophthalmic
association.
D. Prevention by people support groups
a. Local NGO - for example -- Bachpan bachaoo , Sakhi , Aapna jana

kalian, Aarti for girls
b. Local charitable trust - Adarsh charitable trust , Akansha public

charitable trust
c. Disease linked people group - India sponsor foundation for

communicable diseases, TB- Indian foundation, TB Alert India, ,
! !488
The Banyan-mental health NGO for women , people living with

HIV & AIDS (PLHA).
Summary:
Consumer Protection Act, 1986 - Consumer Protection Act (COPRA),

1986 is one of the dynamic and radical pieces of socio-economic legislation
enacted by the Parliament of India since Independence. This act with 35
sections and 4 chapters is enacted for the promotion and protection of the
Consumers - Right to safety, Right to information, Right to choose, Right to
be heard, Right of redressal and Right to consumer education. Consumer
Protection Councils at Central and State level are constituted to safeguard
consumer rights.
The Act clearly states that a consumer can bring up a dispute in the form
of a complaint before these Redressal Agencies. The Act further defines
that a consumer is a person who buys or hires any goods or services for a
consideration in terms of money makes use of the services of a doctor
becomes a consumer.
The verdict of the Supreme Court in 1995 is now crystal clear when it has
held that Hospital and Medical Profession are covered under COPRA. For
the redressal of the grievances of consumers of goods and services,
Consumer Disputes Redressal Agencies at District, State and national Level
have been constituted.
Unlike traditional civil courts, the main objective of Consumer Protection

Act is to provide speedy, simple and inexpensive justice to consumers. As
per the Rules of COPRA, Consumer disputes are to be disposed within 90
days and in some cases where the goods require laboratory analysis; those
cases are to be disposed within 150 days.
One very important point to be kept in view by the complainant is that if

the complaint is found to be 'frivolous and vexatious' the complaint can be
directed to pay costs to the party complained against along with penalty
amount up to Rs. 10,000/-
! !489
Review Questions:
1. Explain how COPRA in applicable to hospitals
2. Describe components of Consumer protection council (CPC)
3. How COPRA affects the functioning of Hospital Administrator 
! !490
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
Video Lecture
! !491
RIGHT TO INFORMATION ACT , ENVIRONMENTAL, POLLUTION ACTS
Chapter 10
Right to Information Act , Environmental,
Pollution Acts
10.0 Right to Information Act , Environmental Act ,Pollution Acts
10.1 Right to Information Act , 2005

10.1.1 Introduction
10.1.2 Scope
10.1.3 Private Bodies
10.1.4 Process
10.1.5 Exclusions
10.1.6 Information Exclusions
10.1.7 RTI and Health related issues
10.2 Environment Protection Act, 1986

10.2.1 Introduction
10.2.2 Objectives of the Act
10.2.3 The power conferred by the environment protection act
10.3 The Air (Prevention and control of Pollution) Act, 1981 and the Air
(Prevention and Control of Pollution) Rules, 1995
10.3.1 Introduction
10.3.2 Different components of air pollution
10.3.3 Health effects of air pollution
10.3.4 Regulatory bodies for air pollution monitoring
10.4 The Water (Protection and Control of Pollution) Act, 1974 and the
Water (Prevention and Control of Pollution) Rules 1995
10.4.1 Introduction
10.4.2 Important facts about water pollution
10.4.3 Control of water pollution
! !492
10.0 RIGHT TO INFORMATION ACT, ENVIRONMENTAL ACT

AND POLLUTION ACTS
10.1 The Right to Information Act (RTI)
10.1.1. Introduction:-
• Is an Act of the Parliament of India “to provide for setting out the
practical regime of right to information for citizens” and replaces the
erstwhile Freedom of information Act, 2002. To promote transparency
and accountability in the working of every public authority, the
constitution of a central information commission and state information
commission and for matters connected there with or incidental thereto.
• The Act applies to all States and Union Territories of India except Jammu
& Kashmir.
• Under the provisions of the Act, any citizen may request information from
a “public authority” (a body of Government or “instrumentality of State”)
which is required to reply expeditiously or within thirty days.
• The Act also requires every public authority to computerize their records
for wide dissemination and to proactively certain categories of
information so that the citizens need minimum recourse to request for
information formally.
• This law was passed by Parliament on 15 June 2005 and came fully into
force on 12 October 2005, which was Vijayadashmi. The first application
was given to a Pune police station on 12 October 2005, submitted by
shahid raza Burney.
• Information disclosure in India was restricted by the Official Secrets Act

1923 and various other special laws, which the new RTI Act relaxes. It
codifies a fundamental right of citizens.
! !493
10.1.2. Scope:-
• The Act covers the whole of India except Jammu and Kashmir, where J&K
Right to Information Act is in force. It is no to all constitutional
authorities, including the executive, legislature and judiciary; any
institution or body established or constituted by an act of Parliament or a
state legislature.
• is also defined in the Act that bodies or authorities established or

constituted by order or notification of appropriate government including
bodies “owned, controlled or substantially financed” by government, or
non-Government organizations “substantially financed, directly or
indirectly by funds” provided by the government are also covered in the
Act.
10.1.3. Private bodies
• Private bodies are not within the Act’s ambit directly. In a decision of
Sarbajit Roy versus Delhi Electricity Regulatory Commission the Central
Information Commission also reaffirmed that privatized public utility
companies continue to be within the RTI Act- their privatization
notwithstanding. Similarly VSNL, which was previously owned by GOI, is
now managed by TATA GROUPS, and is known as TATA Communications.
10.1.4. Process
• The RTI process involves reactive (as opposed to proactive) disclosure of

information by the authorities. An RTI request initiates the process.
• Authority covered by the RTI Act must appoint their Public Information
Officer (PIO). Any person may submit a written request to the PIO for
information. It is the PIO’s obligation to provide information to citizens of
India who request information under the Act.
• If the request pertains to another public authority (in whole or part), it is

the PIO’s responsibility to transfer/forward the concerned portions of the
request to a PIO of the other authority within 5 working days.
• In addition, every public authority is required to designate Assistant

Public Information Officers (APIOs) to receive RTI requests and appeals
! !494
for forwarding to the PIOs of their public authority. The applicant is

required to disclose his name and contact particulars but not any other
reasons or justification for seeking information.
• The Central Information Commission (CIC) acts upon complaints from

those individuals who have not been able to submit information requests
to a Central Public Information Officer or State Public Information Officer
due to either the officer not having been appointed, or because the
respective Central Assistant Public Information Officer or State Assistant
Public Information Officer refused to receive the application for
information.
• The Act specifies time limits for replying to the request.
a. If the request has been made to the PIO, the reply is to be given
within 30 days of receipt.
b. If the request has been made to an APIO, the reply is to be given

within 35 days of receipt.
c. If the PIO transfers the request to another public authority (better

concerned with the information requested), the time allowed to reply
is 30 days but computed from the day after it is received by the PIO
of the transferee authority.
d. Information concerning corruption and Human Rights violations by

scheduled Security agencies (those listed in the Second Schedule to
the Act) is to be provided within 45 days but with the prior approval
of the Central Information Commission.
e. However, if life or liberty of any person is involved, the PIO is

expected to reply within 48 hours.
f. But now day’s peoples are misusing the facilities provided in the act.
In many organizations, employee’s tries to take some personnel
gains, by filing a RTI query, but since the issue is inter departmental
and not in the public interest, so it is not obligatory for the
organization to provide the information as raised in query filed in RTI.
! !495
• Since the information is to be paid for, the reply of the PIO is

necessarily limited to either denying the request (in whole or part)
and/or providing a computation of “further fees”. Normally the fees for
RTI form is Rs 10 /- . The time between the reply of the PIO and the
time taken to deposit the further fees for information is excluded from
the time allowed. If information is not provided within this period, it is
treated as deemed refusal. Refusal with or without reasons may be
ground for appeal or complaint. Further, information not provided in
the times prescribed is to be provided free of charge. Appeal processes
are also defined.
10.1.5. Exclusions
• Central Intelligence and Security agencies specified in the Second

Schedule like IB – intelligence bureau ,Directorate General of Income
tax(Investigation), RAW, Central Bureau of Investigation (CBI),
Directorate of Revenue Intelligence, Central Economic Intelligence
Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation
Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG,
Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman
and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and
Special Branch, Lakshadweep Police. Agencies specified by the State
Governments through a Notification will also be excluded
• The exclusion, however, is not absolute and these organizations have an

obligation to provide information pertaining to allegations of corruption
and human rights violations. Further, information relating to allegations
of human rights violation could be given but only with the approval of the
Central or State Information Commission.
! !496
10.1.6. Information Exclusions
The following is exempt from disclosure under section 8 of the Act:-
• Information, disclosure of which would prejudicially affect the sovereignty

and integrity of India, the security, “strategic, scientific or economic”
interests of the State, relation with foreign State or lead to incitement of
an offense; like border security forces, defense research organization-
DRDO , .
• Information which has been expressly forbidden to be published by any

court of law or tribunal or the disclosure of which may constitute
contempt of court –like cases whose judgment is still pending in the
court of law, like judgment on ram janam bhoomi
• Information, the disclosure of which would cause a breach of privilege of

Parliament or the State Legislature like the details of bills still not passed
on the floor of parliament
• Information including commercial confidence, trade secrets or intellectual

property, the disclosure of which would harm the competitive position of
a third party, unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information like few drug
molecules are the product of original research of the particular
pharmaceutical’s company and they want to preserve the patency or the
copy right about their original research work. So they do not want to
share their original research work with the other pharmaceutical
companies. Similarly different publication house tries to maintain their
copy right so if any one breaks or breach this contract, then such cases
can be sue in the court of law.
• Information available to a person in his fiduciary relationship, unless the

competent authority is satisfied that the larger public interest warrants
the disclosure of such information, for example if query is raised about
disclosure of the interdepartmental information and if PIO thinks that, if
it is not related with the benefit of the larger public interest, they may
refuse to give information.
• Information received in confidence from foreign Government, for

example there are certain sensitive issues, signed by foreign minister,
! !497
who cannot be disclosed to the general public, such as nuclear deal,

foreign policies related to world banks, defense research organization
etc.
• Information, the disclosure of which would endanger the life or physical

safety of any person or identify the source of information or assistance
given in confidence for law enforcement or security purposes, like death
penalty of the international terrorist & personality such as Saddam
Hussain, Osama Bin Laden etc
• Information which would impede the process of investigation or

apprehension or prosecution of offenders like court proceeding of Abdul
Kasab, related to Taj hotel massacre in Mumbai city.
• Cabinet papers including records of deliberations of the Council of

Ministers, Secretaries and other officers like many sensitive issues
related to PMO office.
• Information which relates to personal information the disclosure of which

has no relationship to any public activity or interest, or which would
cause unwarranted invasion of the privacy of the individual (but it is also
provided that the information which cannot be denied to the Parliament
or a State Legislature shall not be denied by this exemption);
• Notwithstanding any of the exemptions listed above, a public authority

may allow access to information, if public interest in disclosure outweighs
the harm to the protected interests. However, this does not apply to
disclosure of “trade or commercial secrets protected by law “.
! !498
10.1.7. RTI and Health related issues:-
a. mainly related to government funded hospital, government aided

NGO, or international agencies which set up health and hospital care
under MOU signed between mutual and bilateral agreement.
b. Always disclose the name of officer related to dispersing the information

related to health, in a state health department---- such as PIO in
heath department
c. Special attention must be given to M.L.C. cases such
-- Dowry death -- any patient brought dead to the hospital
-- OP Poisoning --- RTA, Bomb blast injuries
-- Death in police custody
d. Special attention to the issues of medical negligence's & professional

misconduct
e. Issues related to the operation of health department in a government

sector such as
-- Auxiliary nurse midwife not visiting PHC, in government health

department
-- Issues related to expenses and audit in health department, transparency

related to expenses of grant in aid, social services related to health.
-- Issues related to the constructions of the hospital building, --- like civil
work related to the expansion of newly built ICCU.
-- Issues related to vendor selection & purchase of the costly medicines,

purchase of the costly hospital equipments, and purchase of the costly
hospital appliances etc.
f. Issues related to registration of the vital events - such as birth, death,

maternal mortality, infant mortality, under 5- mortality rate.
! !499
g. issues related to the recruitment of the manpower in hospital & health

care organization such as recruitment of the doctors, nurses, lab
technicians, cath lab technicians, housekeeping staffs, CSSD staffs, etc.
10.2 ENVIRONMENT PROTECTION ACT, 1986
10.2.1. Introduction: - Environment Protection Act, 1986
• Is an Act of the Parliament of India. In the wake of the Bhopal Tragedy

which was due to the leakage of MIC- methyl isocyanides gas, the
Government of India enacted the Environment Protection Act of 1986
under Article 253 of the Constitution.
• The purpose of the Act is to implement the decisions of the United

Nations Conference on the Human Environment of 1972, in so far as they
relate to the protection and improvement of the human environment t
and the prevention of hazards to human beings, other living creatures,
plants and property.
• The Act is an "umbrella" legislation designed to provide a framework for

central government coordination of the activities of various central and
state authorities established under previous laws, such as the Water Act
and the Air Act.
• The objectives of providing this act are for the protection & improvement
of the environment and empower the central government to establish
authorities and lay down the charges to tackle specific environmental
problems.
• The act was last amended in 1991.
10.2.2. Objectives of the Act
• The objectives of providing this act is for the protection & improvement
of the environment and empowers the central government to establish
authorities and lay down the charges to tackle specific environmental
problems
• To co-ordinate the activities of the various regulatory agencies already in

existence.
! !500
• Creation of an authority or authorities with adequate powers for

environmental protection.
• Regulation of discharge of environmental pollutants and handling of

hazardous substance.
• Speedy response in the event of accidents threatening environmental

and deterrents punishment to those who endanger human environment,
safety and health.
10.2.3. The power conferred by the environment protection act are

followed under the following heads
• Coastal regulation zone - like in Mumbai , clearance from the coastal

regulatory board manages to preserve the mangrove population
• Eco- sensitive zone - like forestation and creation of green environmental

belt
• Environmental clearance - general - proper disposal of industrial effluents

into the Mithi river of Mumbai
• Environmental lab like BARC set up environmental lab to do survey

related to presence of radioactive substance in the environment
• Loss of ecology - like fast urbanization is leading to massive cutting down

of the forest
• Hazardous substances management like management of radioactive

waste.
• Ozone layer depletion and increases incidences of global warming and

rapid melting of the snow of Antarctica.
! !501
10.3 The Air (Prevention and control of Pollution) Act,

1981 and the Air (Prevention and Control of Pollution)
Rules, 1995.
10.3.1. Introduction
These regulations are enacted for prevention and control of pollution in air.
These are applicable to all places of work including factories covered under
the Factories Act 1948. The Central and State Pollution Control Boards are
the enforcing agencies. Some of the duties of these authorities include:
• Grant No Objection Certificate to industries, before any factory is set up
• Setting standards for industrial pollution in the ambient air like

monitoring of the concentration of SO2, CO2, carbon monoxide etc
• Monitoring, analysis and conducting investigations regarding air pollution.
• Control of air borne epidemic such as exacerbation of bronchial asthma,

hay fever, COPD
The enforcement is carried out by the State Pollution Control Boards

through qualified engineers and scientists.
• The occupiers of factories are required to ensure that amount of

pollutants released in the ambient air do not exceed the permissible
limits prescribed under the statutes. However, there are no provisions
relating to monitoring and control of airborne concentration of pollutants
at the source as well as in the work room. The statutes also do not
prescribe the precautions to be taken to protect workers against harmful
airborne substance.
! !502
10.3.2. Different components of air pollution
1. Stratospheric ozone depletion due to air pollution, has threatened the

earth's ecosystem as more UV RAYS will reach earth and will produce
global warming.
2. Indoor air pollution and urban air quality are two major concerns in the
field of air pollution. These days lot of indoor appliances such as A.C,
electronic devices such as computer, home theatre, and microwave also
generates electro-magnetic radiation and increases air pollution.
3. Major air pollutants includes
Sulphur oxides- produced from volcanic eruption and industrial pollution

Nitrogen oxide- produces brown haze, irritating type of gas. Carbon
monoxide- released from incomplete combustion of motor vehicles',
industrial waste etc.
4. methane is an extremely efficient green house gas which contributes to

Enhanced global warming
5. particulate matter - such as fluorocarbons, diesel exhaust, ammonia,

Which are major causes of lung diseases such as COPD, lung cancer and
reduces FEV1 & vital capacity of the lung.
10.3.3. Health effects of air pollution :-
• 1. COPD 2. Stroke 3. Lung cancer 4. Cystic fibrosis is due to

particulate matter.
• Children below 5 years are most vulnerable to air pollution
• There is a correlation between pneumonia-related deaths and air

pollution from motor vehicle
• Acute exacerbation of chronic bronchial asthma and secondary lung

infection.
• Different types of lung cancer are
! !503
1. Small cell carcinoma of the lung
2. Aden carcinoma of lung
10.3.4. Regulatory bodies for air pollution monitoring
1. Air quality health index - AQHI Measurement is based on the observed

relationship between NO2, ground- level ozone-O3 and particulates
(PM2.5)
2. Measurement of air quality in the ambient air pollution
3. Creation of central & state pollution control board, and regulation and
control of health hazards due to air pollution.
4. Periodic heath check up of industrial worker's
- Spirometry, also known as lung function test

- X-RAY chest
5. Replacement of diesel and petrol vehicle by CNG vehicle and removal of

old and outdated vehicles by new vehicles
6. Creation of GREEN BELT along the road side, which consumes CO2 and
releases O2, thus, purifying the atmosphere.
! !504
10.4 The Water (Protection and Control of Pollution) Act,

1974 and the Water (Prevention and Control of Pollution)
Rules 1995.
10.4.1. Introduction: - These Rules are enacted for prevention and

control of pollution in water courses. These are applicable to all places of
work including factories covered under the Factories Act. The Central and
State Pollution Control Boards are the enforcing agencies. Some of the
duties of the enforcement authorities include:
• Providing technical guidance

• Monitoring, analysis and conducting investigations regarding water
pollution
• Setting standards for industrial effluents in water.
10.4.2. Important facts about water pollution:-
• Control of water borne epidemic such as cholera, typhoid's, Hepatitis -A,

Acute gastro-enteritis etc.
1. Types of water pollution
1. Point source water pollution

2. Nonpoint source pollution
3. Ground water pollution
2. Physical testing of water pollution - TSS(total suspended solids) &

turbidity
3. Chemical testing of water pollution are pH, biochemical oxygen

demand(B0D), COD- chemical oxygen demand
4. BIOINDICATOR- presence of copepods and crustaceans found in the

fresh water. Coli form bacteria are commonly used as bacterial
indicator of water pollution
! !505
10.4.3 Control of water pollution :-
1. Cooling ponds-- The enforcement is carried out by state boards through

the qualified engineers and scientists appointed for that purpose.
2. Cooling towers
3. Cogeneration- a process where waste heat is recycled for domestic and

industrial heating's
4. Creation of oxidation pond and water treatment plant.
5. Anaerobic lagoons & constructed wetlands
6. Retention basin for controlling urban run off
7. SILT fence installed at construction site
8. Ganga safai pariyojana - a initiative taken by our prime minister to

clean water of Ganga, control the discharge of industrial effluents such
as controlling the discharge of leather tanning industry into the Ganga
especially at Kanpur, preventing the discharge of unbrunt bodies
especially from the Ghats of Varanasi, increasing BOD in the waters of
Ganga with the preservation of flora (alagaes), & fauna (Ganga Dolphins
Sanctuary, formed near Kahalgaon district of Bihar), and preventing the
illegal mining of Ganga sand from sand mafia's of UP & Bihar --- a
mission of Swaach Bharat
! !506
Summary:
The Right to Information Act (RTI) is an Act of the Parliament of India

"to provide for setting out the practical regime of right to information for
citizens" and replaces the erstwhile Freedom of information Act, 2002. The
Act applies to all States and Union Territories of India except Jammu &
Kashmir. Under the provisions of the Act, any citizen may request
information from a "public authority" (a body of Government or
"instrumentality of State") which is required to reply expeditiously or within
thirty days.
Private bodies are not within the Act's ambit directly. The RTI process
involves reactive (as opposed to proactive) disclosure of information by the
authorities. An RTI request initiates the process.
RTI Act must appoint their Public Information Officer (PIO). Any person
may submit a written request to the PIO for information. Assistant Public
Information Officers (APIOs) to receive RTI requests and appeals for
forwarding to the PIOs of their public authority. The applicant is required to
disclose his name and contact particulars .The Central Information
Commission (CIC) acts upon complaints from those individuals who have
not been able to submit information requests to a Central Public
Information Officer.
The Act specifies time limits for replying to the request.
a. If the request has been made to the PIO, the reply is to be given within
30 days of receipt.
b. If the request has been made to an APIO, the reply is to be given within
35 days of receipt.
c. If the PIO transfers the request to another public authority (better

concerned with the information requested), the time allowed to reply is
30 days but computed from the day after it is received by the PIO of the
transferee authority.
d. Information concerning corruption and Human Rights violations by

scheduled Security agencies (those listed in the Second Schedule to the
! !507
Act) is to be provided within 45 days but with the prior approval of the
Central Information Commission.
e. However, if life or liberty of any person is involved, the PIO is expected

to reply within 48 hours.
Environment Protection Act, 1986 is an Act of the Parliament of India.

In the wake of the Bhopal Tragedy, the Government of India enacted the
Environment Protection Act of 1986 under Article 253 of the Constitution.
Objectives of the Act are Creation of an authority or authorities with
adequate powers for environmental protection, Regulation of discharge of
environmental pollutants and handling of hazardous substance.
The Air (Prevention and control of Pollution) Act, 1981 and the Air
(Prevention and Control of Pollution) Rules, 1995 - These
regulations are enacted for prevention and control of pollution in air. These
are applicable to all places of work including factories covered under the
Factories Act 1948. The Central and State Pollution Control Boards are the
enforcing agencies. The occupiers of factories are required to ensure that
amount of pollutants released in the ambient air do not exceed the
permissible limits prescribed under the statutes.
The Water (Protection and Control of Pollution) Act, 1974 and the
Water (Prevention and Control of Pollution) Rules 1995- These
Rules are enacted for prevention and control of pollution in water courses.
These are applicable to all places of work including factories covered under
the Factories Act. As per the requirement of this statutes the occupier of
the factories are required to ensure that amount of effluents in the water
let out do not exceed the permissible limits. Stress is ganga safai
pariyojana, and swach bharat abhiyaan.
! !508
Review questions
1. What are the exclusions of the RTI Act? What are RTI related issues in
health care sectors?
2. What are health hazards of air pollution?
3. Enumerate any 5 applied aspects of environment protection act Q4.
4. What is meant by?
a. Physical testing of the water samples

b. Chemical testing of the water samples
c. Bio-indicator of the water samples 
! !509
REFERENCE MATERIAL
chapter
Summary
PPT
MCQ
Video Lecture
! !510

Legal Aspects in Healthcare 378 v1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Aspects in Healthcare 378 v1

Uploaded by

Copyright:

Available Formats

Legal Aspects In Healthcare

Sub Code 378

Program Design and Advisory Team

Prof. B.N. Chatterjee Mr. Manish Pitke

Prof. Kanu Doshi Prof. B.N. Chatterjee

Prof. Dr. V.H. Iyer Mr. Smitesh Bhosale

Prof. B.N. Chatterjee Prof. Vineel Bhurke

Prof. Venkat lyer Dr. Pravin Kumar Agrawal

Prof. Dr. Pradeep Pendse Mrs. Margaret Vas

Prof. Sandeep Kelkar Mr. Anuj Pandey

Prof. Dr. Swapna Pradhan Course Editor

Prof. Bijoy B. Bhattacharyya Prof. B.N. Chatterjee

Mr. P.M. Bendre Course Coordinators

Mr. Ajay Prabhu Ms. Kirti Sampat

Mr. A.S. Pillai Mr. Kishor Tamhankar

COPYRIGHT © by Prin. L.N. Welingkar Institute of Management Development & Research.

NOT FOR SALE. FOR PRIVATE CIRCULATION ONLY.

1st Edition Jan 2015

Chapter No. Chapter Name Page No.

1 Introduction to Medico legal issue and ethical Issue 4-90

2 Laws pertaining to health 91-111

7 Labour laws applicable to Health care Institutions - 368-402

8 Labor laws applicable to Health care Institutions - 403-477

9 Consumer Protection Act, 1986 478-491

1.1 Indian Constitution

1.2 Indian Penal Code

1.3 Civil and criminal procedures

1.4 Indian Evidence Act

1.6 Judicial system in India

1.7 Regulation of different professional bodies in India

1.8 Basic legal terminologies and Jurisprudence

1.9 Professional Conduct, Etiquette and Ethics Regulations, 2002 and

1.1.1 Reference to health under fundamental rights:

• Provision No. 16, under the Fundamental Rights refers to equality of

• The chapter on Fundamental Rights refers to the Right against

• Under Part IV of the Constitution of India, outlining the Directive

• Clause No.42, under the PART IV OF Constitution of India, Direct its

• Under Clause No.47 in the chapter on Directive Principles, it is said that

• Clause No.51A of the section on Fundamental Duties states that every

1.1.4 Health in the Indian federal set-up:

The seventh schedule of the Indian Constitution mentions responsibilities

THE UNION LIST: Court quarantines including hospitals connected

58.Manufacture, supply and distribution of salt by Union agencies;

59.Cultivation, manufacture, and sale for export of opium.

81.81.Inter-state migration; Inter-State quarantine

84.Duties of excise on tobacco and other goods manufactured or produced

a. Alcoholic liquors for human Consumption;

1.1.5 Health and the state list:

• Clause No.8 refers to the intoxicating liquors, the production,

• ClauseNo.10 refers to the burials and burial grounds, cremation and

• Protection of the plants against pests and prevention of plant diseases is

3. Preventing detention for reasons connected with the security of the

16.Lunacy and mental deficiency, including places for the reception or

18.Adulteration of foodstuffs and other goods.

19.Drugs and poisons, subject to the provisions of entry 59 of List with

91.(20A). Population control and family Planning.

24.Invalidity and old age pensions and Maternity benefits.

92.(25). Medical education and their affiliated universities, Subject to the

25.Medical and other professions.

28.Charities and charitable institutions.

29.Prevention of the extension from one State to another of infectious or

30.Vital statistics including registration of births and deaths.

1.2 INDIAN PENAL CODE (IPC)