April 22, 2009
Jurisprudence To Shudder At !
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Labour litigation in India may have hit a new low with workmen fired 30 years ago and ordered reinstated even by the highest court getting no redress– only another court notice.
Critics say the matter pertaining to three workmen of Uttar Pradesh, the most populous State, is a reflection of what Indian workforce is up against– even without a licence to hire and fire.
Mahendra Singh, Veer Pal Singh and Jhamman Lal were engaged by UP State Electricity Board as ‘muster roll employees’ between July 1977 and January 1978. Their services were severed in January 1979.
According to court documents, a labour dispute was raised in 1985 which the UP government referred to the Labour Court at Agra in July 1987.
The UPSEB deposed before the Labour Court that the workmen were ”engaged only… to carry out the required work”– ”never appointed” in its service.
The Labour Court took eight more years to determine that each employee had worked more than 240 days in a year but got neither the statutory notice nor retrenchment compensation.
In December 1995, Presiding Officer S P Singh dubbed the sackings ”not valid” and ordered each workman reinstated ”within 30 days” and paid Rs 8,000 each ”towards the back wages.”
Counting from 1979, Rs 8,000 amounts to barely Rs 500 a year– or Rs 41 a month.
Although India’s Industrial Disputes Act 1947 provides up to six months imprisonment for ”any unfair labour practice” as well as costs to victims, neither provision was exercised.
Experts say that is not unusual and the enforcement of labour laws is possibly the shoddiest.
They acknowledge that the odds are stacked heavily against workers– notwithstanding Article 14 of the Indian Constitution guaranteeing citizens equality before law.
”It is an unequal fight,” says A D Nagpal, secretary of Hind Mazdoor Sabha, which is counted among India’s five major trade unions, and perhaps the only one not politically affiliated.
The view was echoed by a leading New Delhi-based human resource expert, C S Venkata Ratnam of International Management Institute, who compared the higher judiciary’s responses in each situation.
Redress ”is more quick” for industrialists and politicians than for ordinary people and industrial workers, Dr Ratnam remarked in a telephone interview with United News of India Special Correspondent Mukesh Jhangiani.
He pointed out how workers ”languish for years” before their cases come up for hearing, ”and decades before” they are disposed of.
Impressions like that abound in a society in which scholarship has yet to authentically grapple with realities and inform decision-making.
Experts say India has 134– 43 Central and 91 State– labour laws covering issues ranging from minimum wages to pension and provident fund, many entailing jail terms for violators.
The problem, they say, is that although violations are determined in thousands of cases, the process takes years and consequences are seldom effective in deterring employer misbehaviour.
Indian courts hardly ever award costs and compensatory damages– let alone punitive damages– or send unfair employers behind bars.
Even when incarceration may be unavoidable, authorities appear to bend way over backwards to spare offenders.
An employer arrested in Calcutta in 2003 for not paying provident fund dues and remanded to judicial custody was admitted instead to hospital until a bail was obtained three days later.
That this happened in a bastion of the supposedly pro-worker left, may only be a reflection of what happens elsewhere in India.
In UP, the management– not the victims– challenged the award in the Allahabad High Court, which adjudicated for ten years before holding in May 2005 that ”no interference is called for in the findings of the labour court.”
Observing that ”the termination of workmen in each of the above writ petitions was in violation of provisions of Section 6-N of the UP Industrial Disputes Act, 1947,” Justice Ashok Bhushan said the writ petitions lacked ”merit and are accordingly dismissed.”
With taxpayers still footing the bill, the UPSEB appealed to the nation’s highest court.
In December 2006, Supreme Court Judges S B Sinha and Markandey Katju dismissed the appeal ”on the ground of delay as also on merit.”
While the workmen awaited relief, what they got was a notice directing them to appear before a Labour Court in Agra on November 17, 2007, says advocate Anjani K Mishra who had represented them before the Apex Court.
In August 2007, a UPSEB executive engineer had petitioned the Labour Court citing a 19-year-old Supreme Court order about 800 employees who had been ”out of employment.”
In July 1990, Justices Ranganath Mishra, M M Punchchi and S C Agrawal had ordered their ‘re-employment’ ”without any claim for backwages or seniority if they approach the Board within three months from now.”
The case had been filed by an employees union but only two of the 800 workmen sought re-employment and one actually took it ”as per the principle laid down by the apex court,” the UPSEB acknowledged.
Oddly, the executive engineer argued that the three workmen had ”clearly suppressed the principle laid down” in the 1990 order.
There was nothing to show that the three workmen were even aware of the order the management was directed by the apex court to carry out.
On the other hand, there is no explanation why the management had failed to bring it up during the various stages of hearings which lasted more than 16 years after the order was given.
More than half a dozen adjournments later, Mishra says the matter is still pending in an Agra court. Presiding officer M L Sharma, who issued the notice, retired four months ago and is yet to be replaced.
In effect, the workmen fired 30 years ago, and ordered reinstated 16 years ago by the Labour Court at Agra, are yet to be reinstated or receive back wages or any relief until after a judge is posted.
”Every time we have approached the High Court for interim relief, the UPSEB lawyers have secured a stay,” Mishra said.
A lawyer for the UPSEB declined comment.
Critics say if this is workers’ plight with laws supposedly ‘protective,’ the thought of what might be in store under changes industry wants is bound to cause a shudder!
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