The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
The aggrieved workers were not keen on continuing with the company and instead sought VRS from new management which was turned down by the company on the ground that the earlier scheme had lapsed in 1997. The Calcutta high court while upholding transfer of the ownership however, on October 10, 2001, directed the management to pay retirement, retrenchment benefits to the workers who were not keen to continue with their association in the company. As the management failed to comply with the direction, the workers appealed in the apex court.
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Initiatives for Protection and Welfare of Overseas Indian Workers Indian missions in the Emigration Check Required (ECR) countries, except Qatar have not reported any incidents of atrocities particularly targeting Indian workers. However, cases of complaints from Indian Workers related to fraudulent offers for overseas employment, contractual violations and cheating on the part of foreign employers/ recruiting agents are received in the Missions in ECR countries from time to time. Embassy of India, Qatar has reported that 20 complaints of human rights violations were received during the last two years. Whenever, a complaint is received, action is initiated by the Ministry for suspension or cancellation of the Registration Certificate of the Recruiting Agent. If required, he is also prosecuted through the State Police. Complaints filed against illegal agents are referred to the State Governments for filing criminal cases against them. Whenever there is a complaint against a foreign employer, proceedings for black listing such an employer are initiated. Indian missions also take up these issues with the foreign employers/local governments to protect the interest of the workers.
The Government has taken several initiatives for the protection and welfare of Overseas Indian Workers which include: –
(i) A Nation wide Awareness-cum-Publicity Campaign through media has been launched to educate the intending emigrants about legal emigration procedures, risks of illegal migration and precautions to be taken during emigration.
(ii) The Ministry has set up the Indian Community Welfare Fund (ICWF) in 42 Countries for providing onsite support and financial assistance to Indian workers in distress.
(iii) The Government has established an Overseas Workers Resource Centre (OWRC) which is a 24×7 hour telephone helpline which provides information to intending emigrants as well as emigrants on all aspects of emigration. Complaints can also be lodged through this helpline. (iv) India had signed Labour Agreements with Jordan and Qatar in 1980s to protect the interests of the Indian Workers. Memoranda of Understanding (MOU) were signed with United Arab Emirates (UAE) in December, 2006, with Kuwait in April, 2007, with Oman in November 2008, with Malaysia in January 2009, and with Bahrain in June 2009. An Additional Protocol to the existing Labour Agreement between India and Qatar was signed in November, 2007.
(V) Under these MOUs Joint Working Groups (JWGs) have been constituted that meet regularly in order to resolve bilateral labour issues including the cases of atrocities which come to notice from time to time. These MOUs enhance bilateral co-operation in management of migration and protection of labour welfare.
PKM (Release ID :67596)
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S. DORAIRAJ in Chennai IN THE FRONTLINE
A Madras High Court judgment calls for an amendment of the Workmen’s Compensation Act, 1923, to benefit the worker.
A Judgment of the Madras High Court has raised the hopes of lakhs of workers, particularly those in the unorganised sector, of getting a fair deal in case of an accident at the workplace or a fair compensation to their dependants in case of death. The judgment calls for the amendment of the Workmen’s Compensation Act, 1923, which fixes a ceiling of Rs.4,000 a month as the maximum wage of a labourer while calculating the “employment injury compensation” to an injured workman or while arriving at the compensation to dependants in case of death.
Against the backdrop of criticism in trade union circles that the “judiciary has turned its back on the working people and the poor, particularly since the era of economic liberalisation”, Justice N. Kirubakaran, in his February 8 judgment, observes thus: “Minimum monthly wages can be fixed and there cannot be any ceiling on the monthly wages. Fixing maximum monthly wages is detrimental to the interests of the working class and would certainly affect the fundamental rights of the workers guaranteed under Articles 19 (1) (g) [Right to carry on occupation] and 21 [Right to life].” He said fixing Rs.4,000 as the maximum wage, under Section 4 (1) Explanation-II of the Act, went against the very object of the Act and it was high time the Act was amended.
The judgment comes in the wake of an appeal by the Oriental Insurance Company against the award of Rs.4,34,650 to a mason who suffered 80 per cent disability in an accident during the course of employment on August 20, 2003, and claimed Rs.3,00,000 as compensation. Going into two “substantial questions of law at the time of admission” of the appeal, the court upheld the decision of the Deputy Commissioner of Labour that the claimant was a “workman” who suffered injuries during the course of employment and confirmed his award fixing the compensation at Rs.4,34,650. The Centre of Indian Trade Unions (CITU) and the All India Trade Union Congress (AITUC) have welcomed the judgment.
Recalling that the Workmen’s Compensation Act, 1923, has its origins in the colonial period like many other primary and major Acts, the court pointed out that but for “cosmetic amendments”, the main statement of object and reasons for the enactment of the law remained the same. The object of the piece of legislation was to compensate for injuries arising out of accidents during the course of employment and resulting in disablement or death, the judge pointed out. He said that as the object was very laudable and the legislation had been enacted for the benefit of workmen, there should not have been a ceiling on the monthly wage of workers at Rs.4,000.
“Considering the rise in the earning capacity and spending power, inflation and cost of living, the monthly wage of workmen is bound to rise and change. Therefore, the maximum monthly wage of Rs.4,000 fixed in the Act is very meagre and requires reconsideration by way of enhancement or deletion of ceiling fixed under Section 4 (1) Explanation II of the Act,” the judge observed. He also wondered why labour forums and associations had missed the implications of the section and had not challenged the provision.
While passing the order, Justice Kirubakaran referred to the January 5 judgment of a two-judge Bench of the Supreme Court of India comprising Justice G.S. Singhvi and Justice Asok Kumar Ganguly in Harjinder Singh vs Punjab State Warehousing Corporation. The judges, in separate but concurring judgments, stressed the need to protect the rights of workers in the liberalised and globalised scenario (“Introspection time”, Frontline, February 26, 2010).
The Madras High Court judgment quotes Justice Singhvi’s observation as follows:
“Of late, there has been a visible shift in the courts’ approach in dealing with the cases involving the interpretation of social welfare legislation. 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 and unorganised workers. In 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 bylanes and sidelanes in the jurisprudence developed by this court in three decades.
“The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrongdoer and indirectly punished the tiny beneficiary of the wrong, ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood. It needs no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights….
“Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part, and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer – public or private.”
Justice Kirubakaran also referred to the observation of Justice Asok Kumar Ganguly, that the court “has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so, this court should make an effort to protect the rights of the weaker sections of society in view of the clear constitutional mandate discussed above.”
He further said that while awarding compensation under the Motor Vehicles Act, 1988, factors such as disability, loss of income, pain and suffering, loss of love and affection, loss of consortium, loss of damage to clothes and property and loss of estate are considered whereas under the Workmen’s Compensation Act, disability alone is considered for the purpose of calculating the loss of income.
Stressing the need to revamp the Workmen’s Compensation Act on a par with the Motor Vehicles Act, he said “… an ‘injury’ sustained is always an ‘injury’ and the ‘pain’ suffered is ‘pain’ with all elements and there cannot be any difference whether the victim gets relief under either of the Acts”.
Praising the judgment, A.K. Padmanabhan, president of the Tamil Nadu unit of the CITU, said very rarely had a judgment of this type been awarded by the Supreme Court or the High Courts. He described the High Court order and the judgment of the two-judge Bench of the Supreme Court as “exceptional” and said he hoped they would not continue to be exceptions for too long.
He said three years ago, in Chennai, the State unit of the CITU had submitted a memorandum to the Chief Justice of India expressing concern over the apex court’s decisions that had “consistently gone against the working class”. On the High Court order calling for the removal of the ceiling on wages for calculating compensation, he said: “This is one area where the government has been consistently taking a negative attitude towards the demands of workers and trade unions.” He alleged that the government had made changes in the various enactments on wages wherever it wanted to favour the employers, but nothing of much use to the workers had been done in this regard.
With regard to pieces of legislations such as the Workmen’s Compensation Act and the Bonus Act, the wage ceiling had not been amended for years, he said. Though it had been continuously pointed out by trade unions in various tripartite meetings including the Indian Labour Conference, the highest tripartite body in the country, that certain sections of the Bonus Act had become obsolete, the wage limits prescribed for the application of the bonus law remained, he added.
Pointing out that only recently the Union Cabinet decided to amend the Gratuity Act, which put a ceiling on the maximum amount payable to workers, he said, these were only a few examples to show how wage ceilings in the present inflationary situations took away the meagre amounts that workers were to get as a benefit or as compensation. At least in the wake of the High Court’s judgment, he said, the government should come forward to amend the Workmen’s Compensation Act on the lines of the Motor Vehicles Act.
Expressing similar sentiments, S.S. Thyagarajan, general secretary of the State unit of the AITUC, said trade unions had always demanded that the government lift the ceiling on the wages for all welfare schemes, including Provident Fund, Employees’ State Insurance, and bonus. According to him, the judgment of the High Court “has a tinge of humanitarian consideration”.
He pointed out that the governments had always been reluctant to effect an upward revision of wages that would benefit workers. Whenever amendments effected an enhancement of wages, the increases became virtually redundant owing to belated implementation, he said. “We hope the essence of the judgment will be taken into account and wages will be enhanced appropriately to benefit workers and their families,” he said.
Mukul Sharma IN THE HINDU
Lack of priorities, omissions, negligence and discrimination are letting labourers down.
The recently-held State Labour Ministers’ Conference in New Delhi shows that our governments have manifestly failed in meeting the obligations to end job insecurity, exploitation and poverty, especially of the unorganised labourers. They have been unsuccessful in implementing the basics of social security schemes, including skill building, at both state and national levels. Despite expressions of concern and statements of good intent in the previous Indian Labour and State Conferences, there have been no concrete actions. Violations of labour rights, unjust and unfair conditions of employment, and suppression of trade unions are treated as ‘inevitable’ ills that can continue as an unfortunate reality of life. These are not a result of lack of resources. Rather, lack of priorities, omissions, negligence and discrimination by governments and other players are letting labourers down and out, more so in these times of economic recession.
For unorganised workers
One of the agendas placed in the Central and State Labour Ministers’ Conference concerned the Unorganised Workers’ Social Security Act. The conference also reflected on contract and construction workers, skill development and employment, ESIC schemes and child labourers. According to a survey conducted by the National Sample Survey Organisation (NSSO) in 2004-05, the total employment in both the organised and the unorganised sectors in the country was 45.9 crore, of which 2.6 crore was in the organised sector and 43.3 crore (about 94 per cent) in the unorganised sector. There has been a huge deficit in the coverage of the unorganised sector workers, in matters of labour protection and social security. After a long, time-taking process, the Unorganised Workers’ Social Security Act came into force in May 2009. The act provides for the definition and the registration of unorganised, self-employed and wage workers. It also offers the formulation of different social security schemes by Central and State governments, the constitution of a National Social Security Board at Central and State levels, and the setting up of workers’ facilitation centres. Social security schemes have been mentioned in the areas of life and disability cover, health and maternity benefits, old age protection, provident fund, employment injury benefits, housing, educational schemes for children, skill upgradation, funeral assistance, and old age homes.
The Labour Conference however brings out the fact that except for the constitution of the National Social Security Board, nothing has moved as yet. No social security scheme has actually been determined on the ground. Instead, the board has constituted a sub-committee to suggest various schemes. There has been no initiative on the registration of unorganised workers. Under the Act, State governments are required to frame State Rules, constitute a State Social Security Board and register the workers. However, there is not much to report at the State level. The conference thus spoke in a diffused way: “The Hon’ble Labour Minister has also written to the State Labour Ministers in this regard. A copy of the Unorganised Workers’ Social Security Act, 2008 and Rules framed under there has been sent to the State Governments.’
It is in the area of contract labourers particularly that the apathy of government is glaringly visible. While no precise estimate of the number of contract workers in the country is available, they constitute a substantial segment of the 132.68 million casual workforce component (according to the 61st Round of the NSSO, corresponding to 2004-05), other constituents being various flexible labour categories like casual (hired for fixed hours, mostly on piece rates), temporary (employed for fixed term), badli (employed in textile mills as substitutes for regular workers), apprentices, etc. The Indian Labour Conference constituted a Task Force some time ago to examine the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, and to suggest amendments in it for the protection of workers. However, despite six meetings in this regard, no consensus could be arrived at, as there were divergences of views.
The report of the Task Force does recognise the problems, but has not provided any clue for finding solutions to them. Our governments have now resigned to a situation of wide and increasing prevalence of contract labourers in the organised and the unorganised sectors: ‘It was becoming increasingly evident that in view of the changing global economic environment, contract labour had come to stay.’
The Union Minister of Labour and Employment Mallikarjun Kharge, and the Minister of State Harish Rawat, both had to mention the inevitability of contract labourers in their speeches, at a forum which is primarily meant for the defence and expansion of labour rights.
‘Skill building’ has emerged as a new thrust area for organised and unorganised workers, to adapt to changing technologies and labour market demands. As per the NSSO’s 61st Round Survey Report, every year 12.8 million people are added to the labour force. However, the current capacity of the skill development programme is about 3.1 million, including all agencies involved in vocational training activities. As per the last National Sample Survey, only two per cent of the Indian labour force has received vocational training through formal sources and eight per cent through informal sources. Whereas, the percentage in industrialised countries is much higher, varying between 60 per cent and 96 per cent. The Eleventh Five-Year Plan and the National Policy on Skill Development recognise the unprecedented challenge faced by India, for skilling or up-skilling 500 million people by 2022. These initiatives have a broad new strategy to modernise/upgrade all public institutes according to the industrial requirement, set up a large number of new institutes in public, private and public-private partnerships, involve the industry closely in the running of skill development programmes, introduce long-term and short-term modular courses to cover all sectors of the economy, fill up existing vacancies of principals and instructors, use information and communication technology tools to upscale skill development efforts, and to modernise employment exchanges.
However, most of these strategies are falling flat in their implementation. Take, for example, the plan for modernisation/upgradation of the existing ITIs. Union Finance Minister in his Budget Speech 2004-05 had announced various measures for the upgradation of 500 ITIs in the country. Subsequently, this was reduced to 100 ITIs. Finally, the scheme was terminated in March 2009. The States utilised only 40 per cent of the money allotted to this scheme. Or let us look at the urgent need to modernise employment exchanges. They have not changed at all in terms of providing quality guidance on talent assessment, employment counselling, vocational guidance and training-related information to the jobseekers, or in imparting timely and reliable labour market information. There are a large numbers of vacancies in these employment exchanges since years. Their interaction and networking with the industry is dismal, and their success rate in getting employment is still less than 10 per cent.
By forming the Indian Labour Conference, the State Labour Ministers’ Conference and the Standing Labour Committees, the country recognised that the workers in the organised and the unorganised sectors can only achieve the right to work and the rights at work, along with the right to organise and agitate, if positive conditions are created together by the State and the employers. Despite this commitment, the persistent denial of labour rights has raised concerns about the relevance and effectiveness of such bodies. The acceptance, scepticism and then denial shown at these labour bodies make the situation worse. This will not do, as labour rights are clearly defined, and it is often possible to identify a violation, a violator and a remedy. The work done by trade unions and labour support groups over the past decades has shown some positive ways. Deliberations, debates and consensus making can no longer suffice as excuses for failure to take action, especially at a time when labour violations are widespread. Labour rights are not just aspirations. They are not just goals that can be deferred to the future. These rights are based on laws, enforceable by government bodies, tribunals and courts. They demand immediate respect and implementation.
V. VENKATESAN in New Delhi IN THE FRONTLINE
The Supreme Court makes stringent observations against its own tendency to compromise the interests of workers.
OBSERVATIONS of the court, which are not necessary to reach a decision in the case before it, are called obiter dicta. They are non-binding elements of the judgment or order of the court even though they may be of persuasive value.
In a recent case, a two-judge Bench of the Supreme Court made stringent observations against the court’s two-decade-old tendency to compromise the interests of workers in order to facilitate economic reforms and globalisation. Although the Bench comprising Justices G.S. Singhvi and Asok Kumar Ganguly couched its observations in general terms, it was obvious that they were expressing their extreme displeasure over the number of judgments rendered by the Supreme Court’s bigger Benches, including Constitution Benches comprising five judges, against labour.
In their two separate but concurring orders in Harjinder Singh vs Punjab State Warehousing Corporation, pronounced on January 5, Justices Singhvi and Ganguly articulated the pro-labour philosophy of the Constitution in refreshingly lucid terms, even while deciding the case before them in accordance with facts, law and precedents.
Harjinder Singh was employed with the Punjab State Warehousing Corporation (PSWC) as work charge motor mate from March 5, 1986. On October 3 that year, he was appointed work munshi in the pay scale of Rs.350-525 for a period of three months. On February 5, 1987, his pay scale was upgraded to Rs.400-600 for a period of three months. Though his specified tenure ended on May 4, 1987, he was continued in service until July 5, 1988, when the Managing Director of the PSWC issued one month’s notice seeking to terminate his service by way of retrenchment.
Harjinder Singh moved the Punjab and Haryana High Court and obtained a stay on the notice. The High Court vacated the stay when Harjinder Singh wanted to avail himself of remedy under the Industrial Disputes Act (IDA), 1947, and withdraw his petition with the High Court.
Meanwhile, on November 26, 1992, the Managing Director of the PSWC retrenched Harjinder Singh and 21 other workmen by giving them one month’s pay and allowances in lieu of notice under the IDA.
The Government of Punjab referred Harjinder Singh’s industrial dispute to the labour court. Harjinder Singh challenged his retrenchment on the grounds that persons junior to him were retained in service, thus violating the mandate of the IDA. The PSWC, in its reply, contended that he was retrenched because the projects on which he was employed had been completed. On December 15, 1999, the labour court ordered Harjinder Singh’s reinstatement with 50 per cent back wages because the PSWC had violated the principle of equality enshrined in Section 25G of the IDA by allowing persons junior to him to continue in service.
The PSWC challenged the labour court’s award in the Punjab and Haryana High Court on the grounds that Harjinder Singh was not a regular employee and that there was no post against which he could be reinstated. The High Court disapproved the award of reinstatement on the premise that his initial appointment was against the law. The High Court, therefore, substituted the award of reinstatement and 50 per cent back wages with an order to pay Rs.87,582 by way of compensation.
The Supreme Court, in its order, held that the High Court had unjustifiably overturned an otherwise well-reasoned award passed by the labour court, thus depriving Harjinder Singh of what might be the only source of his own sustenance and that of his family. The Supreme Court also found that the High Court had erroneously assumed that he was a daily wage employee.
It would have been sufficient for the Supreme Court Bench to dispose of the case before it by restoring the award of the labour court in favour of Harjinder Singh and ordering the PSWC to pay him legal costs of Rs.25,000, as it did in its order. But, interestingly, the Bench found it necessary to introspect and make several observations that went against the general trend of many anti-labour judgments of the Supreme Court in recent years.
The two-judge Bench might have been constrained to avoid – in view of judicial discipline – mentioning judgments delivered by previous Benches that went against the interests of labour. But the message was unmistakable and amounted to a forceful indictment of the previous Benches.
Justice Singhvi thus observed: “In matters like the present one, the High Courts are duty bound to keep in mind that the IDA and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV (Directive Principles) thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the state should secure a social order for the promotion of welfare of the people…and also ensure that the workers get their dues.”
The above observations were contrary to what the Supreme Court’s five-judge Constitution Bench held in State of Uttar Pradesh vs Jai Bir Singh (delivered on May 5, 2005). The Bench in this case disagreed with Justice V.R. Krishna Iyer’s pro-labour judgment in the Bangalore Water Supply and Sewerage Board case (delivered by a Bench of seven judges in 1978), and referred it for reconsideration by a larger Bench.
While doing so, the five-judge Bench said: “…The statute under consideration [IDA] cannot be looked at only as a worker-oriented statute. The main aim of the statute as is evident from its preamble and various provisions contained therein is to regulate and harmonise relationships between employers and employees for maintaining industrial peace and social harmony.”
The issue before the Bench was the definition of the word ‘industry’. In the Bangalore Water Supply case, the Supreme Court suggested an expansive definition. Nearly three decades later, the court appeared to be in favour of a restrictive definition in order to exempt many areas of industrial activity from the purview of the IDA and its worker-protective umbrella.
In the Jai Bir Singh case, the Bench further observed:
“It is experienced by all dealing in industrial law that overemphasis on the rights of the workers and undue curtailment of the rights of the employers to organise their business, through employment and non-employment, have given rise to a large number of industrial and labour claims resulting in awards granting huge amounts of back wages for past years, allegedly as legitimate dues of the workers, who are found to have been illegally terminated or retrenched. An over expansive interpretation of the definition of ‘industry’ might be a deterrent to private enterprise in India where public employment opportunities are scarce.”
The observations of the Singhvi-Ganguly Bench assume significance because the nine-judge Bench to reconsider the Supreme Court’s judgment in the Bangalore Water Supply case has not yet been constituted by the Chief Justice of India (CJI). The current CJI, Justice K.G. Balakrishnan, was part of the five-judge Constitution Bench in the Jai Bir Singh case which referred the Bangalore Water Supply judgment for reconsideration by a nine-judge Bench, despite opposition from counsel representing the interests of labour.
Justice Singhvi recalled that in the 1970s, 1980s and 1990s, the courts repeatedly negated the doctrine of laissez-faire and the theory of hire and fire. But, he deplored, that of late there had been a visible shift in the courts’ approach in dealing with cases involving the interpretation of social welfare legislation. The mantras of globalisation and liberalisation were fast becoming the raison d’etre of the judicial process and an impression had been created that the constitutional courts were no longer sympathetic to the plight of industrial and unorganised workers, he pointed out.
Observers point out that Justice Singhvi perhaps had in mind the five-judge Constitution Bench’s decision in the Uma Devi case in 2006. In this case, the court held that a person who had temporarily or casually got employed could not be directed to be continued permanently. Although he did not specifically refer to this case, his disagreement with the court’s judgment in Uma Devi was apparent in this sentence in his order:
“In 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 bylanes and sidelanes in the jurisprudence developed by this court [emphasis added] in three decades.”
He continued: “The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea…ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.”
Justice Singhvi reminded the Supreme Court and the High Courts that if a man was deprived of his livelihood, he was deprived of all his fundamental and constitutional rights, and for him the goal of social and economic justice, equality of status and of opportunity, and the freedoms enshrined in the Constitution remained illusory.
Justice Ganguly’s observations were no less forceful than Justice Singhvi’s. He said: “If the judges fail to discharge their duty in making an effort to make the preambular promise a reality, they fail to uphold and abide by the Constitution, which is their oath of office. In my humble opinion, this has to be put as high as that and should be equated with the conscience of this court.”
He emphasised that the court had a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so, this court (emphasis added) should make an effort to protect the rights of the weaker sections of society in view of the clear constitutional mandate, he said.
Justice Ganguly warned: “Any attempt to dilute the constitutional imperatives in order to promote the so-called trends of ‘globalisation’ may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal.”
He recalled Rabindranath Tagore’s reference to eventualities that might visit us in our mad rush to ape Western ways of life. He concluded that at this critical juncture, the judges’ duty was to uphold the constitutional focus on social justice without being in any way misled by the glitz and glare of globalisation.
Observers wonder whether the remarks of the Singhvi-Ganguly Bench will mark a real shift in the court’s attitude to labour issues or should be just seen as a flash in the pan.
The Delhi High Court on Wednesday directed the state government to register the 17,000-odd labourers working on Commonwealth Games projects and provide them all facilities under labour laws concerned.A Division Bench comprising Chief Justice A P Shah and Justice Rajiv Sahai Endlaw also directed the government to constitute a four-member committee to look into registration of workers. This would entitle them rights such as insurance cover, issuance of minimum wages and pay slips, medical facilities, electricity, and clean drinking water among others.The committee will comprise a labour commissioner, labour secretary, a former UN ambassador and a person associated with National Human Rights Commission (NHRC). The committee has been directed to hold its first meeting on Monday — chalk out its plan of action and inform the court.The court’s directives came while hearing a Public Interest Litigation filed by the NGO People’s Union For Democratic Rights, which based its contentions on two surveys that found these workers live in dangerous and deplorable conditions with no access to basic sanitation and health facilities. The NGO also contended these labourers are paid lower than the stipulated wage.
Appearing for the NGO, senior lawyer Colin Gonsalves requested the Bench that the government must provide wages to them under provisions of the Contract Labour Act and that workers should be issued proper identity cards along with hygienic conditions in camps, regular supply of power and water among other basic facilities.The NGO’s petition was against the Sports Authority of India and agencies in charge of construction of Games projects — Delhi Development Authority, Central Public Works Department, New Delhi Municipal Council, Municipal Corporation of Delhi and the Delhi Metro Rail Corporation.
“You are in too much of haste,” the Bench told government counsel Najmi Waziri. “We are not disputing that preparations have to be done for the Games at appropriate time but in the process we cannot allow workers’ rights to get affected. You must ensure all workers are registered.”The court has sought a report by March 17.
In a fresh attempt to ensure minimum wage for all 34 crore workers in the unorganised sector, the labour ministry has proposed changes in the Minimum Wage Act to allow each job — besides those listed by the Centre and the states — to be covered by the Act.The amendment, to be introduced in the forthcoming Budget Session, proposes that every worker be paid the higher of the two — lowest wage fixed for an unskilled worker or the National Floor Level Minimum Wage — for “any employment other than that covered in the Schedule”.
At present, the Centre and states are empowered to notify any job in the Schedule only when the number of employees is 1,000 or more. There are 45 jobs identified in the Centre’s agricultural and non-agricultural lists while states have as high as 1,596.“With the proposed inclusion of ‘any other employment’ in the Schedule, the provision in Section 3 (1A) restricting addition of employment in the Schedule to 1,000 workers or more becomes infructuous. Hence, it is proposed to be deleted,” says the Cabinet proposal which has the consent of the law ministry.In September 2007, the UPA government dropped a proposal for a national minimum wage for all jobs and retained only social security provisions while introducing the Unorganised Sector Workers’ Social Security Bill.On an average, unorganised sector workers do not earn more than Rs 50 per day while the national floor of minimum wage, last revised in November, is Rs 100. There are over 34 crore workers in this sector of which around 22 crore are in the agricultural sector.
These include home-based workers, employees in household enterprises or small units, agricultural workers, labour on construction sites, domestic work, and other forms of casual or temporary employees, including teachers. While pushing for a minimum wage, the ministry has proposed uniform wage for adult, adolescent, children and apprentices as a differential wage rate provide a cover to the employer to short-change temporary workers.The wages would have to be revised every two years if a state does not provide a dearness allowance that is reviewed every six months. States which give special allowances fully linked to the consumer price index would have the freedom to fix the floor wage every five years.The proposed changes would levy heavy penalty on cheating employers. The fine is proposed to be raised to Rs 5,000 from current Rs 500 with the possibility of a six-month jail. For the second offence, fine would be up to Rs 10,000 or one year imprisonment or both. Those who violate the provisions of the Act — that is do not maintain employment register, do not provide employment card or salary slips — would be fined Rs 5,000 for the first offence and up to Rs 10,000 for subsequent contraventions.
Volume 26 – Issue 04 :: Feb. 14-27, 2009 ,Frontline
|The Unorganised Workers’ Social Security Bill is an incomplete piece of legislation that will not benefit workers much.|
Workers at a construction site in Mysore. The schemes relating to life and disability have not been specified in terms of a concrete financial commitment in the Bill.
THE 422.6-million unorganised workers in the country have little to celebrate despite the passage of the Unorganised Sector Workers’ Social Security Bill, 2008, on December 18. The widespread feeling is that the ruling United Progressive Alliance government has been unfair to the sector, which contributes more than 60 per cent to the Gross Domestic Product (GDP).
The Bill was passed along with several other Bills at the fag end of the 14th Lok Sabha. Passed earlier by the Rajya Sabha, the Bill got the clearance of the Lok Sabha despite strong voices of dissent from the Left parties and a small section of the opposition National Democratic Alliance. The government disregarded most of the amendments moved by these parties and by the central trade unions represented by them. It also disregarded the unanimous recommendations made in the 25th Report of the Standing Committee on Labour (2007-08), which had specifically expressed its dissatisfaction over the Bill in its existing form.
The legislation in its present form is incomplete. It does not have the teeth to implement the clauses contained in it for the simple reason that it lacks any form of mechanism to address disputes or provide redress. Neither does it specify a time frame for the implementation of the schemes.
The Bill merely states that the Central government would formulate and notify, from time to time, suitable welfare schemes relating to life and disability cover, health and maternity benefits, old age protection and any other benefit that may be determined by the Central government. No specific time frame has been suggested, despite the trade unions demanding that the schemes be fixed within three years and the value of benefits adjusted for inflation every two years. Not only have the schemes relating to life and disability not been specified in terms of a concrete financial commitment, but the pattern of funding itself has been left vague.
The amendments moved by Tapan Sen, Communist Party of India (Marxist) Member in the Rajya Sabha, relating to concrete terms of coverage, were not included in the Bill. Tapan Sen, who is also the national general secretary of the Centre for Indian Trade Unions (CITU), had participated in the debate on the Bill and moved the amendments on the basis of the recommendations of the Standing Committee. He said it was unfortunate that no minimum benefit had been laid down in the legislation. “All the benefits should have been specified and made within the main body of the Bill, rather than being appended to it,” he said. He also wondered how the Act could be made justiciable in the absence of any dispute-settlement mechanism.
Under the section “Social Security Benefits”, it is stated, in Clause number 4, that any scheme notified by the Central government may be wholly funded by it or partly funded by the State or Central government, or partly funded by the Central, State and through contributions collected from the beneficiaries or the employers as may be prescribed in the scheme by the Central government. The term “may” has no binding sense as compared with the term “shall”. In fact, the trade unions had faced an uphill task in getting the government to agree to modify “may” into “shall” in some places in the Bill.
The idea of having one Bill to cover the entire unorganised sector, agricultural and non-agricultural, was itself opposed by the trade unions. All through, they had demanded separate legislation for workers in the agricultural sector and the regulation of employment and conditions of service for all unorganised workers. There were two all-India strikes to press for this – one a general strike by unorganised workers on August 8, 2007, and the second one a year later by trade unions.
The Bill itself went through several avatars. The National Commission for Enterprises in the Unorganised Sector (NCEUS) examined the issue under the chairmanship of Arjun Sengupta and submitted a report to the government in 2007. The NCEUS came up with two pieces of draft legislation. But the government wanted only one piece of legislation. Based ostensibly on the report of the NCEUS, the government came up with its own version of a social security Bill and introduced it in the Rajya Sabha on September 10, 2007. It was subsequently referred to the Standing Committee on Labour, which improved on the Bill considerably and suggested a time frame for its passage and the creation of a social security fund for the beneficiaries. The committee underscored the need to bring in separate legislation for agricultural workers.
The All India Agricultural Workers’ Union, in a memorandum submitted to the Standing Committee, stated that comprehensive legislation was needed to regulate working conditions and working hours and ensure minimum wages and equal wages for equal work, among other things. It stressed that a clearly defined form of funding, not just “welfare”, was imperative. “Unless proper service conditions are ensured, no amount of social security is going to be meaningful,” said Tapan Sen. All trade unions were satisfied with the Standing Committee’s recommendations. But the government was not.
In fact, the majority of recommendations of the Standing Committee were ignored. A few cosmetic changes were made, including a change in the definition of the Bill. The word “sector” was dropped from its title. The rationale behind this was that the Bill represented unorganised workers as a whole – including contract labourers in the organised sector who did not get any social security benefit. The trade unions and the Standing Committee had recommended a national minimum social security benefit and a national and state social security fund, neither of which found mention in the final draft.
If the trade unions were critical of the Bill, the observations of the Standing Committee were no less scathing. It said that it was convinced that the Unorganised Sector Workers’ Social Security Bill, 2007, in its present form would not be able to meet the aspirations of the millions of workers in the unorganised sector. The committee went on to recommend that necessary amendments be made to the title of the Bill, in the definition of various significant terms in the Bill, to the various clauses relating to the provision of a statutory right for national minimum benefits for all unorganised workers, and so on.
The Standing Committee observed the Bill had not made it mandatory for the Central government to introduce schemes for the welfare of workers in the unorganised sector. It was also critical that no time frame had been suggested for the coverage of all workers. The committee also expressed its concern over the powers vested in the Central government to amend the schedule pertaining to the schemes.
One of the main criticisms of the committee pertained to the proposal regarding the funding of the schemes. It had recommended that a proper, transparent and institutional mechanism devising a clear and unambiguous methodology be laid down for the creation of a National Social Security and Welfare Fund.
This fund would ensure permanency, continuity and sustainability of social security benefits.
The committee had also envisaged a more meaningful role for the National and State Social Security Board for Unorganised Workers. In its opinion, these boards, apart from their advisory nature, could be assigned the task of implementation of the schemes. The government’s stand of not assigning the role of implementation to the boards was contradictory and irreconcilable, the committee observed. It also found the suggested composition of the national board lopsided. The committee’s suggestion to include more than five State government representatives and elected representatives went unheeded.
The Bill does not contain any penal clause to deal with those who might violate its provisions. Besides, the committee had found the Bill to be silent on regulating employment and on the conditions of work. It said that almost every group that appeared before the committee or every memorandum submitted to it had emphasised the need for looking into the working conditions of the unorganised sector.
The government has had its way. Not only has it taken over two years to get the Bill passed, but it has come up with a half-baked piece of legislation that may not mean much for the workers in the long term. •