Tag Archive | Industrial Disputes Act 1947

Workers – Not To Be Toyed With ! – By Mukesh Jhangiani

                                                                                                            December 01, ‎2011

Labour law concerns the inequality of bargaini...

Labour law concerns the inequality of bargaining power between employers and workers (Photo: Wikipedia)

Workers – Not To Be Toyed With !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A retiring High Court Chief Justice is paid a High Court Judge’s pension. The mistake is rectified– but not before a 15 year court battle.

An Indian Institute of Technology professor invokes his Right to Information– to know why his gratuity is withheld.

After a Japanese executive kicks a worker and tosses the turban of another one, 3,000 employees at a Gurgaon plant form a union– prompting dismissals. Protest brings brutal thrashing from Haryana police in full view of news cameras.

Fired en masse, 362 union-led newspaper employees spend 20 months in Delhi High Court without relief– only to start afresh before a labour tribunal.

Tens of thousands of farmers persuaded to borrow for modern tools, chemicals and seed incur a crop of debt they cannot cope with– and end their lives.

Hired on merit, a scheduled tribe teacher harassed at work goes to the Central Administrative Tribunal, the Delhi High Court and the Supreme Court– her battle and hounding cut short by her death in the premature delivery of a stillborn.

Those are some glimpses of what India’s so-called strong labour laws are doing for– and to– some of its officially counted 400 million workforce Prime Minister Manmohan Singh calls ‘toiling masses’.

Labour and Employment Ministry officials say India has 154 labour laws to ensure welfare of roughly 30 million organised workers and 370 million unorganised workers, including some 250 million farmers and farm hands.

Set up 36 years ago to research labour issues, V V Giri National Labour Institute has yet to produce a comprehensive study of workplace disputes, their causes and outcomes– that might have shown the way to reform.

As in instances cited at the outset, those guilty of making life miserable for some of India’s workmen and women seldom suffer personal consequences under the law.

That, experts acknowledge, defeats right there a key purpose of any legal system– to deter crime by instilling the fear of law in potential offenders.

“Where we fail is in punishing our crooks or offenders,” says former Calcutta High Court Chief Justice D S Tewatia, stressing the urgency of reforms to remedy the situation.

Knowing, for instance, that the worst consequence of denying employees’ wages is having to pay after 10 or 15 years, employers may take such recourse capriciously at the slightest pretext or even without any.

Quite unlike elsewhere in the civilised world, employers in India do not face jail or hefty punitive damages that may make them behave.

In the United States, for instance, former Enron chief executive Jeffrey Skilling was given more than 24 years in prison for fraud and conspiracy involving more than US40 billion dollars debt, thousands of lost livelihoods and duped clients.

Before sentencing, an outraged Enron employee of 17 years, Kevin Hyatt, had asked the judge to ‘send a message’ to other corporate executives by giving Skilling the maximum sentence.

About labour legislation in India, a Western expert observes with an almost audible smirk, ”these laws are of little broad significance. They have long been circumvented in practice in most areas of the economy.”

Such laws as Workmen’s Compensation Act 1923, Contract Labour (Regulation and Abolition) Act 1970, Industrial Disputes Act 1947, Factories Act 1948 and Minimum Wages Act 1948 provide imprisonment for violators.

But strangely the option to invoke those provisions is controlled by government officials.

Headquarters of the International Labour Organ...

International Labour Organisation – Presiding (United Nations Photo)

For any harassment they inflict on employees, employers cannot be prosecuted on those counts without express sanction of labour inspectors or commissioners.

Here are some examples:

— Workmen’s Compensation Act 1923 section 18A(2): No prosecution under this section shall be instituted except by or with the previous sanction of a Commissioner.

— Industrial Disputes Act 1947 Section 34(1): No Court shall take cognisance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate government.

How that works out on the ground was indicated when Lok Sabha Members Sunil Khan, Basudeb Acharia, Amitava Nandy and Gurudas Das Gupta drew attention to labour law violations some years ago.

The Labour Ministry gave data on the violations handled in 2003-04 and 2004-05 by the Central Industrial Relations Machinery headed by the Chief Labour Commissioner.

Of 9,826 and 9,538 disputes received under the IDA, for instance, 3,533 and 3,583 were settled while ”FOC– failure of conciliation–reports (were) submitted” in 4,276 and 2,743 disputes respectively.

The Ministry gave no account of how many violators, if any, went to jail.

“The Ministry and its machinery should be protecting labour– not employers,” was how Acharia, a Communist Marxist MP from Bankura, West Bengal, put it.

Asked then if he knew of any case in which an industrialist has had to go behind bars for breaking labour laws, Acharia said, “not one.”

As it is, given poverty and unemployment on one hand and the state of law and courts obtaining on the other, employees find themselves between a rock and a hard place.

The reverse appears to hold for affluent industrialists. Matters are filed in courts where they take years before it is time for appeals and more years.

How workmen or women survive without wages or relief may be hard to grasp for authorities not familiar with such hardship.

Thus it is that workers lose jobs while employers keep running industries and establishments– unmindful of consequences not in evidence. There is little to deter employers’ misconduct.

A published source says even West Bengal, the left bastion, saw 274 lockouts in 2000, more than half– 143– declared to reduce workforce on “the pretext of loss of economic viability.”

Short of sound laws and implementation, half measures abound.

The Institute of Company Secretaries of India proposed some time ago requiring independent professional assurance from practising company secretaries on labour law compliance.

But critics stress the importance of sound labour laws and effective enforcement.

Experts point out how professional auditors have for decades approved accounts without raising an eyebrow– while Swiss numbered accounts of Indians have grown.

Given such facts or data, it may appear natural that workers representatives agitate to rectify things.

Strangely, it is employers’ associations which have been demanding greater facility to hire and fire employees, a Labour Ministry statement noted some time ago.

“The employers have been vehemently pressing for labour reforms on the plea that these are necessary for making Indian industry globally competitive and for attracting more of foreign direct investment.

“The existing laws, it is contended by employers, slow down growth and job creation. They say that under the existing labour laws the churning of new skills is slower; companies lose cost cutting flexibility and ability to bounce out of recession quickly.

“The employers further contend that Labour Market will become more flexible with the amendments; more workers can be hired legitimately and can ask for better benefits including better work conditions, safety standards, welfare measures and health benefits,” the statement said.

Some of these arguments are backed by such institutions as the World Bank.

But critics ask how governments reconcile promises to workers of more jobs with bigger pay packets and better work conditions with promises held out to foreign investors of abundant cheap and skilled labour.

English: Official Portrait released by the Off...

Labour & Employment Minister Mallikarjun Kharge (Photo: Wikipedia)

At a conference in New Delhi, WB experts spoke of better work contracts.

Asked who will fix a contract if an employer breaks it, the experts promptly replied: the Courts.

Asked if it was fair for employees to have to go through years of litigation for wages of their work, the experts conceded the incongruity of the situation and spoke of judicial reforms.

They argued that reforms would follow in the legal system as pressure builds up. But that, critics say, is like putting the cart before the horse, especially considering some recent trends in labour-related adjudication and judicial orders.

On the other hand, experts say it is important to note that the associations seeking to change the rules are made up of industrialists who are themselves often subsidised by taxpayers in any number of ways.

Apart from receiving concessions in tax and costs of land and other public resources, many have been notorious in building up lakhs of crores of rupees of India’s Non Performing Assets– a euphemism for unrepaid loans.

Unlike tens of thousands of debt-ridden farmers who end their life unable to face the ignominy, no one appears to have heard of NPA defaulters making such choices.

Experts agree that the government must strike a balance. Citizens must not only be proclaimed to be equal, they must also be treated as equals. Just as workers must work, so must employers manage properly and pay wages.

Any failures or abuses, including manipulation of unions, must lead to consequences, they say.

Laws and fora must be put in place or firmed up to deliver justice in time– not at leisure, experts say.

UNI MJ TBA RP 1454

Related articles

Advertisements

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