M J Antony: Labour law muddle

The judiciary searches its heart and finds that it has shown little sympathy towards the unorganised sector

Though the law ministry has rolled out several tantalising vision statements on legal reforms in recent months, when one rubs one’s eyes, they turn out to be empty dreams. Nowhere is this more true as in the much-needed revision of labour laws to bring them up to date with the current liberalisation regime. Just one glaring example: The Supreme Court has been asking the government for decades to properly define the term “industry” in the Industrial Disputes Act, but law-makers have not given it a moment’s thought. The court itself once promised to reconsider its judgments on this issue, but it has not set up a nine-judge Constitution bench for the purpose. The workers are thus left in the lurch in many cases.

 

In the absence of clear and comprehensive legislation in key areas of labour law, courts at different levels have been passing contrary judgments, making self-corrections and referring complex issues to larger benches, waiting in vain for definitive answers. Very often, the outcome of a dispute depends upon the views of a particular set of judges. For instance, the Supreme Court had held in the Randhir Singh vs Union of India (1982) case that the directive principle of “equal pay for equal work” should be read as a fundamental right. Since then the court has been diluting the principle in stages till now when that judgment rendered by an affirmative bench is reduced to a shell.

The last few years saw a bewildering slew of judgments on the status of casual, daily-wage, temporary or ad hoc employees, and their right to equal wages and regularisation. In most cases, their fight up to the Supreme Court has been in vain. This prompted two judges of the court last month to make strong remarks about the state of affairs in labour law. The Harjinder Singh vs Punjab State Warehousing Corporation case was about the illegal retrenchment of a low-paid “work munshi”. The labour court ordered his reinstatement with 50 per cent back wages. On appeal, the Punjab and Haryana High Court stated that his appointment was not proper and, therefore, set aside the labour court order. Instead of reinstatement, it merely ordered compensation.

The Supreme Court showed this case as an example of the “visible shift” in the approach of the courts in dealing with livelihood issues. It said: “The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial or unorganised workers. In a large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by this court in three decades.”

According to the judges, the stock plea raised by the employer in such cases is that the initial employment was contrary to some law and reinstatement would put unbearable financial burden on the establishment. “The courts have readily accepted the plea unmindful of the accountability of the wrong-doer and indirectly punished the tiny beneficiary of the wrong... If a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights.”

In most cases involving demand for regularisation, the affected persons are illiterate, inarticulate and unorganised. Their tribe is increasing rapidly under the new liberalisation and outsourcing regime. The employees’ unions have almost vanished from the scene. It is, therefore, preposterous to ask migrant workers, for instance, to produce evidence that they had worked 240 days to be regularised. However, the Supreme Court has put the burden of proof on the casual labourer. These, and judgments like the ones in Steel Authority of India and Umadevi cases which make the claim for regularisation almost impossible to assert in a court of law, have provoked a counter view in the latest judgment.

When the laws are outdated and incapable of taking care of the present situation, the role of the court becomes more crucial. There is a slide in the conscientiousness of the courts, as admitted by the apex judges themselves. “Judiciary is not a mere umpire, as some assume, but the activist catalyst in the constitutional scheme,” the court stated, recalling a 1979 judgment in a land reforms case.

However, how far these affirmative drumbeats will have material influence on future cases is anybody’s guess. This judgment is written by two judges, the smallest possible bench in the Supreme Court. The larger ones are not bound by this view. Moreover, these observations are in the nature of obiter dicta which have no binding value. It would seem that this is just a flash of socialistic assertion amidst an irreversible drift.