September 16, 2008
India’s National Holidays Work For Employers !
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Thousands of Indians in the nation’s Capital spent the Independence Day holiday on job, earning twice the wages and a day off as compensation– at least in law.
But, four weeks later, authorities have no clue how many get to collect the due wages, and how many, if any, don’t.
”We take action against errant employers under the law,” Delhi’s Labour Commissioner K S Wahi said in a telephone interview, but acknowledged ”certain gaps in the laws which must be covered.”
On the Independence day, the Department’s 30-odd Shop Inspectors went around some 130 establishments in the city checking for violations. The count won’t be in until another few days.
Experts point out that such a small number does not even qualify as much of a sample considering hundreds of thousands of units operating in India’s National Capital Territory.
Employment in shops, hotels, restaurants and eateries, theatres or other public amusement or entertainment establishments is governed under the Delhi Shops and Establishments Act 1954.
Enacted to ”consolidate” laws to regulate work hours, pay, leave, holidays and so on, it is one of two dozen Acts on matters ranging from minimum wage to gratuity the Department enforces.
The Act is enforced through 30 plus Shop Inspectors in nine districts of Delhi who function directly under respective district Deputy or Assistant Labour Commissioner.
Experts say the ”gaps” alluded to may have to do with inadequacies in the law and enforcement which let law-breaking employers get away.
Take the ”exemption” proclaimed by the Lieutenant Governor of Delhi in September 2004 to let shops do business as usual on three days in a year lawmakers have declared National Holidays.
By law, Indians are entitled to take the day off on: January 26, the Republic Day, August 15, the Independence Day, and October 2, Mahatma Gandhi’s birth anniversary.
But thousands of shops and call centres across the NCT keep working through those days– some because they have to, others simply choose to.
What if an employee wishes to celebrate a National Holiday ? What steps are taken to ensure that employees are paid the prescribed wage and compensatory holiday ? How many employers have been prosecuted in the last three years ?
When these and related questions were addressed to Delhi’s Lieutenant Governor Tejendra Khanna, his Principal Secretary R Chandramohan suggested these be put to the Labour Department.
Replying for the Department, K R Verma, Chief Inspector of Shops and Establishments, stated that an employee wishing to celebrate a national holiday must ”seek leave of absence from his employer”– in other words, no longer take it as a matter of right.
The issue is not holidays, it is labour law and enforcement.
How does a department with just 30 labour inspectors keep tabs on so many employers or millions of employees ?
Verma said ”the current thinking regarding securing compliance with laws is based upon the policy that most of the establishments comply with the law.”
The Department has not prosecuted any employer on this count or, indeed, under the entire 1954 Act in the last three years, Chief Inspector Verma told United News of India Special Correspondent Mukesh Jhangiani.
While commercial activity has mushroomed in most of the city’s residential areas, even hogging space meant for homes and street traffic, law or its rule have yet to catch up.
Wahi, for instance, could not say how many units do business in the NCT, as Delhi government stopped registering them almost two decades ago.
”Registration was mandatory under the Act prior to 23.11.1989 since when the same has been kept in abeyance,” a government website acknowledges.
Lawyers say they apply for registration on behalf of client firms only to secure a reply– often after repeated effort– that the process is on hold.
”We typically either do not get a response,” says advocate Diljeet Titus, ”or receive a note from the Chief Inspector stating ‘We acknowledge receipt of your application’.”
He says he applies to ensure ”no allegation of violation of the Act is made against the client in the absence of a registration.”
Section 37 of the Act empowers Inspectors to enter ”any… establishment,” examine the premises and records and take on the spot evidence so as to detect violations.
But a source said inspections have also been put on hold for ”four or five” years owing to short staffing and alleged corruption.
Complaints were made by some businessmen that authority was being abused to demand bribes, the source said.
Instead of cracking down on corrupt officers or businessmen, the city apparently chose to skip the drill provided in law to detect offences.
As to staffing, Verma disclosed that against 72 posts, the Department has barely 30 Shop Inspectors, and against 20 posts, barely nine Inspecting Officers. It doesn’t even have enough stenographers to transcribe orders, he said.
The induction of Delhi and Andaman Nicobar Islands Civil Services officers appears to have contributed complications of its own over professional qualifications, officials say.
So how does the Department enforce law ? According to Commissioner Wahi, the complaint of a labour violation has to come from the worker whose right is violated. ”We are here to take care of it.”
”On getting specific information regarding a violation,” said Verma, the Department ”investigates the complaint and decides the action to be taken in each case on merits.”
But experts say the odds of employees– waiters, salesmen, attendants or helpers– lodging complaints against employers, especially in prevailing market conditions, are low.
Even when a complaint is made, the processes are so set as to give employers ample opportunity to escape punishment.
Does the Commissioner’s office undertake to protect a worker victimised for filing a complaint ? For instance, what is the remedy if the employee is sacked.
Officials point to courts a worker may turn to.
Experts say courts may at best secure an employee’s unpaid wages.
But the costs, the time– years, decades– litigation takes, not to mention the tortuous risks and uncertainties it involves, make it impractical, even prohibitive.
An employee considering adjudication has to think about the next meal, rent or school fee ? What is worse is that the system offers little in terms of justice or deterrence against wrong.
Labour officers say they cannot go beyond the law, which often provides for petty, laughable fines– Rs 25, Rs 250, not revised in half a century.
But it turns out that even penalty law provides is seldom awarded by metropolitan magistrates who hear complaints.
For instance, Section 41 of the Act prescribes up to three months imprisonment for a false entry in office record.
But Labour officers, including N R Ahluwalia, who retired as ALC four years ago, said they could not recall a single instance in which an employer went to jail under the provision.
Experts acknowledge the dire need for clear laws, with strong deterrence in terms of mandatory punishment not just for violations, but for any lapse in enforcement at any level.