Tag Archive | Article 14

Vedanta Workers’ Wage Struggle ‘Not Entertainable’ : NHRC – By Mukesh Jhangiani

English: NHRC logo

NHRC (Photo: Wikipedia)

                                                                                                           November 21, 2010

Vedanta Workers’ Wage Struggle ‘Not Entertainable’ – NHRC

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – India’s National Human Rights Commission has dismissed a complaint against authorities’ alleged inaction on human rights violations of workers of a multinational company in Orissa.

”Not entertainable” was how the Commission dubbed the complaint dated September 8, 2010 pertaining to an August 31, 2010 night incident at Vedanta Resources’ aluminium project at Lanjigarh.
The incident involved a hundred-odd policemen swinging batons at thousands of agitated unpaid Vedanta Resources workers, injuring 25 of them and throwing an unspecified number of them in jail.
”The root cause,” the complaint said was ”labour demanding its salary backlog… When workers were denied their arrears, they protested but failed to get their dues and landed in jails… implicated in criminal cases.”
The protest began in the evening after talks on paying minimum wages failed and workers were ”retrenched” instead, Orissa-born complainant Radhakanta Tripathy said.
Police baton-charged protesters ”as some of the workers forcibly entered Vedanta Aluminium’s administrative office and began to destroy property,” the complaint said.
Neither the complaint, nor some media accounts make it clear why Vedanta Resources– committed to investing Rs 36,000 crores to expand the project– allegedly chose to deny workers’ dues.
It is even less clear why the Orissa Labour Department had not intervened at the first sign of trouble.
Efforts to get the status from the Orissa government’s Labour and Employment department commissioner-cum-secretary have yet to bring a reply or an acknowledgement even after three weeks.
The complaint filed before the NHRC did not say how long the workers had remained unpaid, nor the amount the company owed. It simply urged the Commission to institute an investigation.
India has more than a hundred labour laws to ”protect” workmen and workwomen, but enforcement is another matter, subject often to delays and distortion at various levels or stages.
Several laws provide imprisonment for violators, but errant employers usually get away by paying paltry fines or bribing.
Employers seldom– indeed, if ever– do time in jail or pay punitive damages– no matter the laws, no matter the violations, no matter the suffering their victims undergo on account of their actions or inaction.

English: Vedanta Nagar Lanjigarh

Vedanta Nagar Lanjigarh (Photo: Wikipedia)

No matter, indeed, Article 14 of the Constitution Judges are sworn to uphold which provides that ”the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Critics say such circumstances may in effect encourage violations by making the breaking of the law a ”profitable” business proposition.
The government has reported that the Britain-based mining conglomerate has been denied permission to expand its Alumina refinery in Lanjigarh for allegedly having flouted norms at its existing works.
The violations reportedly adversely affected the lives of tribals and forest dwellers around Lanjigarh.
The 47-word order cited Section 36 of The Protection of Human Rights Act, 1993 read with regulation 9 of the NHRC (Procedure) Regulations 1994, as amended.”
”Hence, no action is called for and the file is closed,” the order by a Commission assistant registrar (Law) said, without specifying the cause of the disqualification.
Asked why the Commission does not clearly say why a complaint is dismissed, officials acknowledged the need to do so in the interest of transparency but offered no explanation.
Section 36 says the Commission shall neither inquire into any matter pending before a State or other Commission nor into an alleged violation after the expiry of a year.
While the 1993 Act is spelt out on the NHRC website, the 1994 Regulations are not as easily accessible.
Asked to clarify, NHRC joint registrar A K Parashar suggested checking with information officer Jaimini Kumar Srivastava, who cited a Website list of the sort of complaints not entertained:
— Violation committed longer than a year before;
— Matters sub-judice;
— Matters Anonymous or pseudonymous;
— Matters frivolous;
— Service matters.
Asked which of those criteria applied in this case, Commission assistant registrar A K Garg told United News of India special correspondent Mukesh Jhangiani a few days later that ”our policy is not to entertain industrial disputes. That is why the complaint was dismissed.”
UNI MJ SLD 0955

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Jurisprudence To Shudder At ! – By Mukesh Jhangiani

                                                                                                                                        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!

UNI MJ

 

 

 

India ‘Much More Divided’ Now Than By British: Rao – By Mukesh Jhangiani

                                                                                 December 4, 2009

Article 14 - Equality Before Law - At India Gate  -  By Mukesh Jhangiani

Article 14 – Equality Before Law – At India Gate – By Mukesh Jhangiani

India ‘Much More Divided’ Now Than By British: Rao

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Fifty nine years after resolving to promote fraternity among citizens, India is ”much more divided today” than during the British rule, a leading Indian advocate observed this evening.

The British policy of ‘divide and rule’– playing Hindus against Muslims and vice versa– ”was limited,” Senior Advocate P P Rao noted while delivering the tenth G V Mavalankar Memorial Lecture.
”Now, quite a few political parties thrive by relying on caste and community,” Rao pointed out, concluding that, ”India is much more divided today than during the alien rule.”
The Lecture, Reinforcing Institutions Of Governance, was sponsored by the Institute of Constitutional and Parliamentary Studies, and presided over by retired Supreme Court Judge B P Singh who traced the decline in Indian public life through lapses in efficiency and integrity.
Rao recalled Dr S Radhakrishnan describing India at the inaugural sitting of the Constituent Assembly as ”a symphony where there are… different instruments… all combining to interpret one particular score.”
Dr B R Ambedkar, he recalled, was emphatic that ”castes are anti-national… in the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste.”
”In 1950,” Rao said, ”we the people of India had resolved to promote fraternity among all citizens and promote unity and integrity of the nation. Now we find we are divided by the political class on caste and community lines for electoral gains.
”The British policy of ‘divide and rule’ was limited; playing Hindus against Muslims and vice versa. Now, quite a few political parties thrive by relying on caste and community. India is much more divided today than during the alien rule.”
Rao stressed a need for unity and reminded that former Vice-President Krishan Kant had suggested two simple amendments to the election law to eliminate the influence of caste and community in elections.
— Introduce a condition that in order to be declared elected from a constituency a candidate shall secure not less than 50 per cent + 1 votes of the total votes polled, failing which, there shall be a run off election limiting the contest to the two leading candidates in the first round; and
— Add one more slot in the ballot paper for negative vote– for rejecting all the candidates contesting.
”If a majority of the votes polled reject all the candidates there shall be a fresh election with new faces. If these are implemented, reliance on caste and community will vanish silently,” Rao said.
Remembering Lok Sabha’s first Speaker, Rao said, ”Mavalankar was a statesman… What is the position of the Speaker’s office today? It is perhaps one of the most challenging of all political offices, notwithstanding the additional power to adjudicate claims of disqualification of members under the Tenth Schedule.
”We saw on the TV the predicament of my friend Mr Somnath Chatterjee during the debate on the no-confidence motion last year. It was much more difficult than that of a Ring Master in a circus.
”The objectionable conduct of some Speakers of State Legislative Assemblies has been disapproved by the Supreme Court. Many Speakers in State Assemblies do not inspire confidence. The fall in standards is too glaring to ignore.
”Experts have rightly recommended shifting the power of disqualification to the Election Commission. It needs to be done as part of a package of legislative and executive reforms.”
Rao called regulation of political parties ”a felt necessity today” and recited Nani A Palkhivala’s view that ”If experts imbued with a spirit of dedication and wisdom were to be inducted into the cabinet and were to be allowed the requisite freedom of action, we could transform this country into one of the great economic powers.”
On linguistic chauvinism of the sort exhibited in Maharashtra, Rao said ”I cannot understand how this attitude can be tolerated by any Government.”
He recounted some of the Constitutional provisions:
— Article 14 mandates the State not to deny to any person equality before the law or equal protection of the laws within the territory of India;
— Article 16(1) assures equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and
— Article 19 of the Constitution guarantees to all citizens the right to move freely throughout the territory of India, to reside and settle in any part thereof, and to practice any profession or to carry on any occupation, trade or business anywhere in India subject to reasonable restrictions.
”In India we have common citizenship and all Indians are entitled to equal rights, but in the land of the Thackeray’s– Bal Thackeray and Raj Thackeray– Maharashtra is for Maharashtrians; Indian Railways shall recruit only Maharashtrians; all employment opportunities – from the lowest to the highest in public as well as private establishments should be reserved exclusively for Maharashtrians; and every Legislator must take the oath only in Marathi language, otherwise they will let loose their sena’s to paralyse civic life, attack targeted people and destroy their property.
”I cannot understand how this attitude can be tolerated by any Government and how the political parties led by them can be allowed to enjoy the benefit of registration and recognition.
”Justice Sreekrishna Commission report named the leader of Shiv Sena as an accused in the Bombay riots, following the demolition of Babri Masjid. The State Government was reluctant to arrest and prosecute him fearing outbreak of uncontrollable violence.
”This policy has emboldened and encouraged them to become more defiant. It is necessary to amend At.355 to facilitate Central rule in a part of the State to tackle localised outbreak of communal violence in a State like Kandhamal in Orissa.”
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