chapter – v judicial response to industrial disputes...
TRANSCRIPT
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CHAPTER – V
JUDICIAL RESPONSE TO INDUSTRIAL DISPUTES
5.1 Introduction
Meaning and importance of industrial jurisprudence, trade union
freedoms- judicial responses, role of Supreme Court under Article 136 of
Indian Constitution, problems of strike in Indian industry, and wage
structure decisions of judiciary and its responsiveness in settling the
industrial disputes has discussed in this chapter.
The role of management and trade unions in settlement of industrial
disputes is very important and dynamic concept specially in India where the
relations between capital and labour is very critical in view of poverty,
illiteracy, and the ignorance of the majority of the workers in organized
industry and also in unorganized sectors. Therefore always many conflicts
between these two parties arise frequently posing a great threat to the
industrial peace and production is affected and ultimately the progress of
the society gets crippled at this juncture, is set rite the machine of industry
for the progress of the nation, it is the responsibility or obligation of the
judiciary to interfere and settle the disputes.
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The role of the judiciary is very significant in providing social
justice to the workers by the eminent judges. Justice Krishna Iyer in the
case of Indian Express News Papers Pvt. Ltd., Vs Indian Express News
Papers Employees Union1 said that “industrial jurisprudence is not static,
rigid or textually cold but dynamic, burgeoning and warm with life. It
answers in emphatic negative to the biblical interrogation. The Industrial
Tribunal of India in the areas unoccupied by precise block letter law, go by
the constitutional mandate of social justice in the claims of the little
people”. It can be pointed out here that in every state certain ideas or values
will be followed and they can be achieved through various laws. These
values are very important to the society because through these ‘values’ the
state desires to mould the society. In India these ‘values’ are ‘fundamental
Principles’ which are projected in the Constitution.
The Constitution of India embodies the noble and grand vision of
liberty, equality, and fraternity and also promise to secure social, economic
and political justice. The Constitution of India desires to attain these goals
through the legislation and judiciary. In this manner the Constitution has
served as basis for jurisprudence The same is true in the case of industrial
1 1978, I LLJ II (SC), pp.12 – 13.
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jurisprudence, therefore it is said that India Constitutional law is the touch
stone to the development of industrial jurisprudence in India.
The industrial jurisprudence in India is value oriented and seeks to
attain a very just and social order. The Industrial Dispute Act, 1947 is a
peace of welfare legislation desired in achieving social as well as economic
justice which is the aim of industrial jurisprudence.
In the early periods of Industrial Revolution, ‘Laissez – Faire’
continued to rule for fight some time. Under the system of ‘Laissez – faire’
the activities of Government are very limited to collection of revenues and
maintenance of peace and order and defense against external threats or
aggression. This type of Government laid to many social problems
including anarchy in industrial relations and exploitation of labour giving
rise to many serious social tensions. But after some time the Industrial
workers had self conscious and started understanding or realizing their
importance for the industry to organize themselves into unions and also
started representing their grievances to the authorities concern including the
employers.
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This type of approaches by the workers was resisted by the
employers not only by using physical force, but also by the use of penal
provisions of law for some time but could not be continued for a longer
period. This type of action taken by the employers resulted into some sort
of social consciousness of the needy laid for framing the better working and
service conditions. This was also required the support of the law and
ultimately many labour laws have been passed for the welfare and
protection of the industrial workers and ultimately this led to the birth of
industrial jurisprudence which has been recognized by the state and society.
5.2 Importance of industrial jurisprudence
Before going to discuss further details about the concept of the
industrial jurisprudence the researcher desires to give the meaning and
importance of the industrial jurisprudence.
In this broad conceptual point of view it is very important to discuss
the concept of Industrial Jurisprudence very briefly. The compound word
“industrial jurisprudence” is the combination of two independent words
‘Industry’ and ‘Jurisprudence’. The term ‘Jurisprudence’ is derived from
latin word ‘Jurisprudentia’ and is a combination of ‘Juris’ and ‘Prudence’
which literally means “knowledge of law”. In this generic and primary
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sense jurisprudence includes ‘the entire body of legal doctrine’2. Holland3
describes it as the ‘formal science of positive law’ and Allen4 as the
‘scientific synthesis of the essential principles of law’. According to Patten
“Jurisprudence is a particular method of study and not of the law of one
country but of the general notion of the law itself which is not primarily
interested in cataloguing uniformities, nor in discovering rules which all
nations accept, but to study the nature of law, the nature of legal institutions
and their relationship with the society.
“There can be no law without Legislative Act” said Austin in his
Jurisprudence5, and yet for framing of laws, jural basis or sources of laws
are required. Whatever be the source, it indicates an ‘idea’ or ‘value’ which
the particular law seeks to achieve. These ‘values’ are of utmost importance
to the society as upon their achievement depends on the future shape of the
society itself. Indeed every law should indicate the choice of ‘value’ made
by the society and all its processes should work towards its achievement.
This is particularly true about Indian industrial jurisprudence, which is the
2 P.J. Fitzagerald, Salmond on ‘Jurisprudence’, Chap 1 Universal Law Publishing Co. Ltd., 2003, at p.2.3 T.E.Holland, Elements of Jurisprudence, Chap 1, 13th Edn., Oxford.4 C.K.Allen, Law in the making (Chap 1), 7th Edn., Oxford Clarendon Press Paper Book, 1964.5 G.M.Kothari,“Labour & Practice”, vol. I, 1980, p. A – 3.
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value oriented and seeks to achieve a just and fair social order in actuality
through the process of law6.
The emergence of industrial society because of industrial revolutions
and commencement of industrialization in the 18th century has changed
and modified the structure of the society. The progress of the industry has
direct effect on industrial towns as well as big industrial towns and
positively resulted into industrial progress converting globe into a big
workshop.
What in these circumstances become primarily important was better
and harmonious relationship between employer and employees not as a
master and slave, nor as master and serf nor even as master and servant, but
as employer and employee came to be recognized and considered equal
partners in the industry in the course of time.
The age old theory of laissez – faire based upon the so called
freedom of contact was found inadequate and wanting for the development
of harmonious and amicable relations between the employers and
employees and could not secure the close cooperation of the two. The
concept of prevailing jurisprudence were to legalistic to achieve this objects
6 A.A. Vaidya: “Industry & Industrial Disputes - The Judicial Trend”, 2009, p.47.
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“it learned too much on the theory of natural rights and misconstrued
them7”.
Industrial jurisprudence covers almost all the aspects attached with
‘industrialization’ and its scope is very vast and it touches all the corners
such as social, political, economical, ethical and global of industrialization.
Every legal problem concerning about labour are industrial person comes
under the industrial jurisprudence. Inspite of the importance of the
industrial jurisprudence it is not free from restrictions, or limitations.
In the first instance, the industrial jurisprudence is desires to regulate
the human relation problem, which is only a part of the whole society and
therefore it would be restricted to that in its application and secondly it is
based upon principles of social justice. Inspite of many limitations the
industrial jurisprudence will have to take a final shape in future by taking
all precautions for making good relations between employers and
employees.
The importance of industrial jurisprudence can be seen from
different directions or angles. It is concerned about all industrial related
aspects and hence is of all pervading nature it effects almost all the entire
7 A.A.Vaidya: “Industry & Industrial Disputes – the judicial trend”, 2009, p. 49.
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world. Industrialization being complex multi faced phenomenon, industrial
jurisprudence cover all aspects attached with the industry.
5.3 Trade union freedoms–judicial responses
Trade union freedoms are the basic feature of a free, open and liberal
society where regulatory processes are merely connective and secondary
nature for accelerating the path and direction of trade unions towards self
reliance, self control and inner and outer democracy and all its feature and
processes. In such social and political frame work legal and judicial process
have helped in consolidating the trade union freedoms in all its facets and
features. It is appropriate to mention here the words of Franklin D Rusevelt,
President of United States of America that “I see an American where the
workers are really free through their great union and dominated by outside
force or any director within, can take their proper place in the commercial
tables, with the owners and managers of business where the dignity and
security of the working man and woman are guaranteed by their strength
and fortified by the safeguard of the law.”8
However the picture of India with regard to trade union freedoms is
quite different to the American situations. In India the Trade union
8 V.R..Krishna Iyer, “Law Vs Justice – problems & solutions, 1981, p. 114.
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philosophy and movement as it birth pangs in the social milieu of economic
exploitation, political oppression and ideological hostility which emanated
from the dominant groups which viewed trade union freedom suspicious
indifference and total opposition. Hence, both regulating and judicial
process before and after independence become the major instruments or
defeating or denying and controlling trade union freedoms9.
It can be said that in the earlier times in India the primitive colonial
Trade Union Act, 1926, and the various public safety ordinances. Essential
Services Act, Criminal Law Amendment Act, The Indian Penal Code, The
Police Act and the Criminal Procedure Code, are a few examples, only such
an attitude persist in the last decades of the 20th century in the guise of
National Security Act, 1980 and the Essential Services Maintenance Act. In
so far as Indian adjudicatory processes as embodied in the Industrial
Dispute Act, 1947 and other labour management laws is concerned, it has
been tilting towards social justice rather than trade union freedoms10. The
evolution and a viable industrial jurisprudence for productivity and
improved industrial relations and successful achievement of Trade Union
Freedoms are important developments for land economic progress.
9 Ganga Sahai Sharma: Trade Union Freedoms in India, 1990, P – 189.10 Ibid.
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The Supreme Court in India and High Courts under the parameters
of constitutional philosophy have played a unique role through power of
judicial review which has tendered to revolutionize the methods,
approaches and interpretations opposed to attitude adopted by the
employers slowly and systematically a new industrial jurisprudence as
grown with a decisive thought towards social justice. Faith in the rule of
law compels us to understand the implication of Constitutional Law in
labour relations and industrial adjudication.
The contributions made by higher judiciary in India in this direction
has been largely positive.
It has not merely supplemented and strengthened the legal provisions
but several cases as character a new course of action. In earlier times labour
cases decided around 1948 the High Court dismissed out of hand a demand
by the trade union leaders for a higher wages on the ground that the court
cannot alter the contractual obligations between the parties after this case.
The then Federal Court in the case of Western India Automobile
Association Vs Industrial Tribunal11 had pointed out that in the interest of
social justice with a view to securing peace and harmony between the
employer and the workman industrial adjudication impose new obligation 11 AIR, 1949 FC 111.
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or abolish the old ones or after the existing terms and conditions of
employment if it thought to do so. This opinion of the Federal Court was
supported subsequently by the Supreme Court in Bharat Bank Ltd. Vs The
Employees of Bharat Bank Ltd.12 and other subsequent cases.
It is very interesting to mention here that the Supreme Court of India
has emphatically propounded the very ideas of social justice in the form of
general interest of the community in its historical judgment of State of
Bihar Vs Kameshwar13 which are given below:
“with the onward march of civilization, our notions as to be scope of
general interest of the community are fast changing and widening with the
result that our old and narrower notions as to the sanctity of the private
interest of the individual can no longer stem the forward following tide of
time and must necessarily give way to the broader notions of general
interest of the community. This modern trend social and political
philosophy well reflected and given expression in our constitution.
In the post independence period India adopted the philosophy of
social and economic justice and the planned production target by
introducing scheme of mixed economy to avoid loss of production caused
12 1950 LLJ SC 931.13 AIR, 1952 SC 252.
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by the recurring industrial strife. Therefore the Government of India
adopted strike or lockout ban policy to maintain peace in industry with
quasi democratic measures which assured workers association in non –
essential matters.
The Government of India introduced a system of compulsory
conciliation and adjudication machinery to achieve the objectives of
maintaining industrial peace, productivity and social justice because of the
workers who were very weak and incapable to bargain with the employer
and settle the dispute. With a view to relax the legislative grip and to
promote industrial democracy the judiciary has made new dimensions in
maintaining the industrial relations.
It is interesting to mention the Judgement of the Supreme Court in
the case of J.K. Iron & Steel company Ltd. Vs Iron & Steel Mazdoor
Union14 Mr. Justice Vivien Bose speaking from the Supreme Court laid
down that the decision of the Tribunal must be based on established
principles and not import any notion of so called justice or compulsion to
safe guard the interest of the workman. In the same case Mr. Bose said that
one sided benefit to the workman should not be given by evolving the
notion of socio–economic justice. 14 1956 I LLJ 227 (SC).
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The Supreme Court of India during the periods of 1950’s decided
industrial dispute generally within the ambit of the strict law and adhering
to the literal interpretation of the provisions of labour legislation and
contractual obligations. Justice Bhagavati, an eminent judge of Supreme
Court in an exceptional situation evolved the notion of social justice who
remarked that the ultimate object of industrial adjudication is true to help
the growth and progress of the national economy to promote industrial
peace.15 With the effort of Chief Justice Gajendra Ghadkar evolved law in
response to the needs of the society. Therefore the judgment of the highest
Tribunal reveals that the Judges of the Supreme Court have spoken
different times with different voices. Some of the judges in delivering the
judgment on labour matters have established new principles of industrial
jurisprudence through judicial legislation to safe guard the emerging trade
union freedoms, thus protecting the interest of the socially and
economically weaker sections of the society16.
Justice Hidayatullah observed in the case of Rastriya Mill Mazdoor
Sangh Vs Apollo Mills Ltd.,17 that the social justice is not based on
contractual relations and is not to be enforced on the principles of contract
15 Nirmala Textile Finishing Mills Ltd., Vs Second Industrial Tribunal, Punjab, 1957 SCR, 335.16 Ganga Sahai Sharma “Trade Union Freedoms in India”, 1990, p – 192.17 AIR, 1960, SC, 819.
186
of service, and it is something outside these principles and is invoked to do
justice without a contract to back it.
The Supreme Court of India played a very important role specially in
protecting the interest of poor working class by ignoring the strict
contractual laws and provided social justice to them.
Dr. P.B. Gajendra Ghadkar introduced the very important
philosophy that the concept of industrial peace is positive and postulates the
existence of the understanding, cooperation and sense of partnership
between the employers and employees. The state should try to avoid strikes
and strifes’ in the industrial world to maintain cordial and harmonious
relationship between labour and management.
Justice Gajendra Ghadkar made his sincere efforts to uplift the
deprived and downtrodden people within the parameters of the law. In the
case of Standard Vacuum Refining Company Vs Its Workmen18 with a view
to clarify the transformation era of notions and conception of labour, the
advent doctrine of welfare state confined and routed deeply in the nation’s
progressive philosophy which have rendered the traditions concept of
‘laissez – faire’ absolute. And where the social consciousness of the general
18 1961 I LLJ 22 SC.
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community becomes more alive and active, the welfare policy of the state
takes a more dynamic forum, the national economic progress stage to stage
and under the growing strength of trade union, collective bargaining and
industrial democracy enter the field. The labour problem ceases to be
purely arithmetical and physical satisfaction.
It is also to be pointed out that industrial adjudication and also
necessarily to be aware of the current economic thought around in the case
of J.K. Cotton Spinning and Weaving Mills Company Ltd., Vs Labour
Appellate Tribunal.19 It was held that the ultimate object of industrial
adjudication is to help the growth and progress of national economy.
There are some judges who created history in delivering justice to
the working class. One of such persons is justice V.R. Krishna Iyer who
made revolutionary and progressive philosophy. “To him the principles of
scientific management tend to value technical efficiency about human
factors may not hold goods in managing human beings who have
emphatically demonstrated in recent years that they cannot be treated as
cogs in the wheel of machinery. They would like to have a responsible and
respectable place in society and also in the industry where they work for
about a 100 years. 19 1963 II LLJ 444.
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Social justice is justice according to social interests subordinate to
fundamental rights. In the case of Board of Trustees, Port of Bombay Vs
Dilip Kumar20. Justice Bhagavathi said that “justice must not only be done
must seem to be done” is not a requirement for courts alone, it applies with
equal vigour, and rigour to all those who must responsible for fair play in
action.
The above discussion it is clear about the role played by the
judiciary in providing justice and also for the maintenance of good labour
management relations. There is no doubt that justice alone can maintain
relations between the employees and employers and by which a nation can
achieve productivity and industrial peace.
5.4 Role of supreme court under article 136 of Indian constitution
The Article 136 of the Indian Constitution provides that the Supreme
Court may, in its discretion, grant special leave to appeal from any
Judgment, Decree, Determination, Sentence, or Order many causes or
matter passed or made by any court or Tribunal. There has been a long
controversy in the judicial circle about the use of this power. The question
is whether the Supreme Court jurisdiction to entertain an application for
20 1983 Lab. IC 419 SC.
189
leave to appeal against the award of a Tribunal was raised for the first time
in the case of Bharat Bank Ltd., Vs The Employees of Bharath Bank21 Chief
Justice Kania was of the opinion that the wording of the Article 136 were
wide enough to give jurisdiction to the court to entertain such an
application although having regard to the nature of the functions of the
Tribunals, the court would reluctant to entertain such an application.
Justice Fazal Ali was also of the opinion that since the Tribunal had
all the trappings of the court and performed some kind of judicial functions
its decisions were appealable to the Supreme Court.
Justice Mahajan said that mere circumstances that a remedy in the
nature of writ of certiorari was opened to the petitioners did not necessary
laid to the conclusion that the power of this court under Article 136 of the
Indian Constitution was circumscribed by that circumstance.
Whatever judicial review was permissible in one form or other, the
highest court in the land could exercise its special power and circumvent
ordinary procedure by granting special leave. In the case of Bengal
Chemical and Pharmaceutical Works Ltd., Vs Employees22. The Supreme
21 1950 II LLJ 921.22 1959 I LLJ 413.
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Court laid down a principle that it could exercise its discretionary
jurisdiction only in cases where awards were made in violations of the
principles of natural justice, causing substantial and grave injustice to the
parties or which raised an important principles of industrial law requiring
adjudication and final decisions of the courts or which disclosed such other
exceptional or special circumstances which merited the consideration of the
court.
In subsequent cases on the basis of, the observations denied
interference with the conclusions as to be reasonableness and fairness by
authorities empowered under the industrial dispute Act to arrive at such
conclusions. In other words the employers had been prevented from
canvassing such a question because the matter of fairness and
reasonableness was left by the legislature for decisions with authorities
constituted under the Act23.
Even in cases where the Government’s power of reference under
Section 10 of the Industrial Dispute Act, 1947 was questioned, the Supreme
Court of India did not think it right to interfere with decisions taken by the
Government under that provisions through making reference to the
Government is required to indicate the nature of the dispute, was of the 23 Rohtak Hissar District Electric Supply Company Ltd., Vs State of U.P., 1966 II LLJ 330.
191
view that Government acting under Section 10 of the Industrial Disputes
Act was doing an administrative Act and the fact that it had to form an
opinion has to the factual existence of the dispute as a preliminary step to
discharge its functions, did not make it the less administrative in character
and the court could not canvas the order closely as it was a judicial or quasi
Judicial Act.
Further it is to be stated that the court could not quash the
proceedings merely because, in its opinion the Government had no material
to come to that conclusion.
In the case of State of Madras Vs C. Parthasarathi24 it was said that
rather the Government have power in the interest of industrial production to
set the machinery of settlement in motion without pausing to enquire what
the specific points of the disputes were.
5.5 Right to strike : The Constitution, Courts and Adjudication:
In India it is known fact that the strikes are frequently resorted by the
workers and the trade unions because of various reasons such as lack of
proper trade union consciousness and lack of legal awareness about the
consequences of strikes. 24 1953 I LLJ 174.
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The trade unions leaders emotionally declare strikes against the
employers using different types of methods. The causes of the strikes are
many such as non payment of proper wages, stringent working conditions,
failure of collective bargaining system and other methods of settlement of
industrial disputes, involvement of political parties, dominating attitude of
the management, failures in providing labour welfare and the social
security.
The right to strike has also been recognized in all democratic
societies. Reasonable restrain use of this right is also recognized. Similarly
the employers also have the freedom to use the weapon of lock – out in
case workers fail to follow the rules of contract of employment. The degree
of freedom granted for its exercise varies according to the social, economic
and political variants in the system for safe guarding the public interest, the
resort to strike or lock – out and in some cases the duration of either subject
to rules and regulations or voluntarily agreed to by the parties or statutorily
imposed this has been criterion underline the earlier legislation for
regulating industrial relations in the country25.
25 Report of the National Commission on Labour, 1969, p – 327.
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The strikes and lock – outs are useful and powerful weapons in the
armoury of workmen and employers and are available when a dispute are
struggle arises between them. Threats of their use even more than their
actually use, influence the course of the contest. The threat is often explicit
much more often tacit but not for that reason less effective26.
Trade unions and employers will have to use very skillfully these
weapons strike and lock – out by way of threatening or actual may help one
party to force the other to accept the demands, or atleast to concede
something to them. But reckless use of this weapon creates the risk of
unnecessary stoppages. The stoppages hurt both parties badly create worse
tensions and frictions and violations of law and order and above all, from
the public point of view they retard the Nation’s Economic Development.
A strike could be defined as a cessation of work by a body of persons
employed in any industry acting in combination, or a concerted refusal, or a
refusal under a common understanding, of any number of persons who are
or have been so employed to continue to work or to accept employment. In
English law, there is no comprehensive legal definition of strike or
industrial action. Perhaps the closet we come to is Lord Denning’s attempt
in Court of Appeal in 1975, when he said that “a concerted stoppage of
26 Indian Law Institute “Labour Law and Labour Relations”, 1987, p – 361.
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work by men done with a view of improving their wages or conditions, or
giving vent to a grievance or making a protest about something or other, or
supporting or sympathizing with other workmen in such an endeavour”.
Strikes are, in other words, weapons in the hand of the workers and their
organizations to promote and protect their economic, occupational and
social interests in the broad sense of the term.
With the constitution coming into force there was an attempt made
to bring in the theory of a concomitant right, as was inferred in Romesh
Thapar’s case27 to infer the right to strike within the confines of Article
19(1) (c) of the Indian Constitution.
In the case of All India Bank Employee’s Association Vs. National
Industrial Tribunal and others28 held as follows :
The right guaranteed by Art 19(1)(c) of the Constitution of India
does not carry with it concomitant right that unions formed for the
protection of the interests of labour shall achieve their object such that any
interference to such achievement by any law would be unconstitutional
unless it could be justified under Article 19(4) of the Indian Constitution as
being in the interest of public order or morality. The right under Article
27 1950, SCR, 404.28 (1962) 3, SCR, 269.
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19(1)(c) extends only to the formation of an association or union concerned
or as regards the steps which the union might take to achieve its object,
they are subject to such laws and such laws cannot be tested under Article
19(4) of Indian Constitution29.
In another case B.R. Singh Vs. Union of India,30 justice Ahmadi was
of the view that the right to strike cannot be equated to that of a
fundamental one. “Strike in a given situation is only a form of
demonstration. There are different modes of demonstrations, eg. Go-slow,
sit in, work to rule, absenteeism, etc and work. Strike is one such mode of
demonstration by the workers for their rights. The right to demonstrate and
therefore the right to strike is an important weapon in the armoury of the
workers. The right has been recognized by almost all democratic countries.
Though not raised to the high pedestal of a fundamental right, it is
recognized as a mode of redress for resolving the grievances of the workers.
But the right to strike is not absolute under our industrial jurisprudence and
restrictions have been placed under it”.
29 Mayuri Patel; Trade Union Law in India, Labour Industrial Cases Journal, 2008, p. 343. 30 1989 (4), SCC, 710.
196
In the case of Communist Party of India (M) Vs. Bharat Kumar and
others31, the Supreme Court adjudicating on the legality of strikes held that
the “Fundamental rights of the people as a whole cannot be subservient to
claim of an individual or only a section of the people”.
Two sections of the society namely lawyers and government
servants come under the scrutiny of the Supreme Court. In the case of Ex-
captain Harish Uppal Vs. Union of India and another32, the court held that
lawyers have no right to go on strike or give a call for boycott and even
they cannot go on a token strike.
The Apex Court further opined that strike as a weapon in any field
does more harm than any justice.
In line with this trend of adjudication by the Supreme Court is the
case of T.K. Rangarajan Vs. State of Tamilnadu33
This case deals with the action of Tamilnadu Government, where by
it had terminated the services of all employees who had resorted to strike
for the fulfillment of their demands. The said decision was challenged
before the High Court of Madras by filing writ. Learned single judge by
31 1998 (1) SCC 201.32 2003 (2) SCC, 45.33 (2003) 6 SCC, 581.
197
interim order, inter alia, directed the State Government that suspension and
dismissal of employees without conducting enquiry be kept in abeyance
until further orders and such employees be directed to resume duty. That
interim order was challenged by the State Government of Tamilnadu by
filing writ appeals. On behalf of the Government Employees, writ petitions
were filed challenging the validity of the Tamilnadu Essential Services
Maintenance Act, 2002 and also the Tamilnadu Ordinance No.3 of 2003.
The Division Bench of the High Court set aside the interim order
and arrived at the conclusion without exhausting alternative remedy of
approaching Administrative Tribunal, writ petitions were not maintainable.
The petitioners came up on appeal against the said order and for the same
reliefs, writ petitions under Article 32 of the Indian Constitution the
petitioner approached the Supreme Court.
In the above case the Court set about to answer two important
questions namely :
(a) Is there a fundamental right to go on strike ?
(b) In the instant case, do the employees have a statutory right
to go on strike ?
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(a) Is there a fundamental right to go on strike ?
The Apex Court in the process of answering the same referred the
judgements of previous cases of Kameswar Prasad and others Vs. State of
Bihar and another34 wherein the Supreme Court held that there exists no
fundamental right to strike.
The Supreme Court quoted another judgement in the case of Radhey
Sham Sharma Vs. The Post Master General, Central Circle, Nagpur.35 The
fact of the case that the employees of the Telegraph Department of the
Government went on strike from the midnight of July 11, 1960, throughout
India and the petitioner was on duty on that day. As he went on strike, in
the departmental enquiry, penalty was imposed on him. The same was
challenged before the Hon’ble Court. In that context it was contended that
Sec.3,4 and 5 of Essential Service Maintenance Ordinance No.1 of 1960
were violative of Fundamental Rights guaranteed by clauses (a) and (b) of
19 (1) of the Indian Constitution.
The court considered the said ordinance and held that Sections 3, 4
and 5 of the ordinance did not violate Fundamental Rights enshrined in Art
19(1)(a) and (b) of the Constitution of India.
34 1962 Supp. 3, SCR, 369.35 1964 (7) SCR, 403.
199
The Supreme Court reliance on the decisions of Ex-Capt. Harish
Uppal Vs. Union of India and Communist Party of India (M) Vs. Bharat
Kumar and others in coming to the conclusion that there exists no
fundamental right to strike.
(b) In the instant case, do the employees have a statutory right to go on
strike?
The Supreme Court of India observes that there is no statutory
provision empowering the employees to go on strike. Further it observes
that there is prohibition to go on strikes under the Tamilnadu Government
Servants Conduct Rules, 1973. Rule 22 provides that “no government
servant shall engage himself in strike on incitements there to or in similar
activities”36.
The Hon’ble Supreme Court of India did not impose a blanket ban
on all strikes. The court further declares that the said strike to be illegal in
view of Rule 22 which prohibits government servants from going on strike.
36 L. Nageswara Rao, Right to Strike: National and International Perspectives Endowment Lecture of Smt. Pemmaraju Hymavathi and Satyanaryana on 14-11-2003 pp. 7-9, at Acharya Nagarjuna University, Guntur.
200
Several decisions of the various High Courts in India as well as the
Supreme Court itself have adverted to and positively affirmed the right to
strike in so far as workmen are concerned.
5.6 Wage Structure – Decision of the Judiciary
The concept of 'Minimum wage' was first evolved by International
Labour Organisation in 1928 with reference to remuneration of workers in
those Industries where the level of wages was substantially low and the
labour was vulnerable to exploitation, being not well organized and having
less effective bargaining power. As per the recommendations of Royal
Commission on Labour in India, a draft bill was considered by the Indian
Labour Conference in 1945, introduced in Indian Legislative Assembly in
1946 which was followed by the adoption of Minimum Wages Act, 1948.
The Act was enacted to secure the welfare of the workers in a competitive
market for a minimum limit of wages in certain employments.37
Wages means all remuneration capable of being expressed in terms
of money, which would if the terms of contract of employment, express or
implied were fulfilled, be payable to a person employed in respect of
employment or of work done in such employment. The Minimum Wages
37 Preamble of the Minimum Wages Act, 1948
201
Act, 1948 provides for fixation and enforcement of minimum wages in
respect of scheduled employees to prevent sweating or exploitation of
labour through payment of low wages. The object of the set is to ensure a
minimum subsistence wage for workers.
The Minimum wage, as the name itself implies, represents the level
below which wages can not be allowed to drop. It is prescribed in order to
check :
a)The evil of sweating; and
b)For the benefit of workers who are not in a position to bargain with
their employer.38
In Randhir Singh v. Union of India case the Supreme Court observed
as39 it is true that the principle of 'equal pay for equal work' is not expressly
declared by out of the Constitution to be a fundamental right. But it
certainly is a constitutional goal. Article 39(d) of the Constitution proclaims
'equal pay for equal work for both men and women' as a Directive Principle
of State Policy. 'Equal pay for equal work for both men and women' means
equal pay for equal work for everyone and as between the sexes. Directive
Principles, as has been pointed out in some of the judgments of this Court
38 All India Reserve Bank Employees Association V. Reserve Bank of India, AIR 1966 SC 306.39 (1982) 1 SCC 618: 1982-I-L.L.J-344
202
have to be read into the fundamental rights as a matter of interpretation.
Article 14 of the Constitution enjoins the State not to deny any person
equality before the law or the equal protection of the laws and Article 16
declares that there shal1 be equality of opportunity for all citizens in
matters relating to employment or appointment to any office and the State.
These equality clauses of the Constitution must mean something to
everyone. To the vast majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned with the work
they do and the pay they get. To them the equality clauses will have some
substance if equal work means equal pay construing Articles 14 and 16 of
the Constitution in the light of the Preamble and Article 39(d), it is of the
view that the principle 'equal pay for equal work' is deducible for those
articles and may be properly applied to cases of unequal scales of pay based
on no classification or irrational classification though those drawing the
different scales of pay do identical work under the same employer."
Again in U.P. Income Tax Department contingent Paid Staff Welfare
Association v. Union of India and Others40, the Apex Court having regard
to the principles as laid down above in, gave following relief in the ultimate
analysis: 40 (1987) Suppl. SCC 668.
203
"We accordingly allow this writ petition and direct the respondents
to pay wages to the workmen who are employed as the contingent paid
staff of the Income Tax Department throughout India, doing the work of
Class IV employees at the rates equivalent to the minimum, pay in the pay
scale of the regularly employed workers in the corresponding
cadres…………"
The Apex Court repeatedly upheld the proposition of equal pay for
equal work in Bhagwan Dass and Others, v. State of Haryana and Others.41
The Apex Court has also observed that the Central Government could not
take any advantage of its dominant position to treat the work as casual arid
retain them on lower wages.42 In the leading case of Dhirendra Chamoli V.
State of U.P43 'the epitome of what was held is that casual workers could
not be denied same emoluments and benefits as admissible to temporary
employees on the premise that they had acquiesced to the employment with
full knowledge of their disadvantage. In Grih Kalyan Kendra Workers'
Union v. Union of India and Others44, the Apex Court quintessentially
opined that though on facts, no, discrimination was found, but the principle
of 'equal pay for equal work' was upheld and recognised where all were
41 AIR 1987 SC 204942 Bharathiya.Dak Tar Mazdoor Manch V. Union of India and Others, 1988-I-LLJ-370 SC 43 (1986) I SCC637: 1986-I-L.L.J -13444 (1991) I SCC 619: 1991-I-L.L.J.-349
204
placed similarly and discharging same duties and responsibilities
•irrespective of casual nature of work. In these judgments, this right had
been held to have assumed status of a fundamental right of' equality' in
Articles 14 and 16. In State of West Bengal v. Pantha Chatterjee and
Others45, the Apex Court followed the aforesaid decisions and held that the
part time Border Wing Home Guards (BWH.G) could not be treated
differently from the permanent staff of the B.W.H.G and are to be accorded
parity with them. The Apex Court confirmed the decision of the learned
judge of the Calcutta High Court to the effect that the part time workers are
entitled to be absorbed irrespective of the age that which would stand
waived.
Haryana and Others v. Jasmer singh and others46 laid down the
following principle as it is clear that the quality of work performed by different
sets of persons holding differ jobs will have to be evaluated. There may be
differences in educational or technical qualifications which may have a bearing
on the skills which the holders bring to their although the designation of the job
may be the same. There may also be other consideration which have relevance
to efficiency in service which may justify differences in pay scales on the basis
of criteria such as experience and seniority, or a need to prevent stagnation in
45 AIR 2003 SC 356946 1997-II-LLJ 667 SC
205
the cadre, so that good performance can be elicited from persons who have
reached the top of the pay scale. I There may be various other similar
considerations which may have a bearing on efficient ' performance in a job.
This Court has repeatedly observed that evaluation of such jobs for the
purposes of pay scale must be left to expert bodies and, unless there are any
malafides, its evaluation should be accepted."
“When a daily wager accepts employment, he is presumed to be
aware of the nature of his employment and the consequences thereof. It is
therefore not permissible for the respondent workmen to claim parity with
regular employees and accordingly claim wages and allowances equal to
that of the regular employees."
The observation made by the Supreme Court in a judgment rendered
recently in the case of S.C. Chandra and Others v. State of Jharkhand and
Others47 are also noteworthy in this regard: “The equation of posts and
salary is a complex matter which should be left to an exert body. The courts
must realize that the job is both a difficult and time consuming task which
even experts having the assistance of staff with requisite expertise have
found it difficult undertake. Fixation of pay and determination of parity is a
complex matter which is for executive to discharge”. 47 AIR 2007 SCW 5480
206
The Supreme Court in the Constitutional Bench comprising in five
judges in State of Karnataka V. Umadevi48 a case on regularization of daily
workers took a strong definitive stand censoring regularization of workers
by judiciary. Though a case not related with the payment of wage, it has
had a strong bearing on the labour decisions.
In a recent decision of the Supreme Court in U.P State Electricity
Board v. Pooran Chandra Pandey49, a two judges bench of the Apex Court
distinguished the decision of the same Court in Umadevi and held that the
petitioner therein should not be discriminated against vis-a-vis the original
employees of the Electricity Board since they have been taken over by the
Electricity Board 'in the same manner and position' and that the Board
cannot deny the benefit of regularisation to the petitioners who were
working from May 4th,1990 as employees of the Board. In the Pooran
Chandra Pandey's case, 34 petitioners who were daily wage employees had
prayed for regularisation of their services in the U.P State Electricity
Board. The Apex Court held that the decision in Umadevi's case cannot be
applied to a case where regularisation has been sought for in pursuance to
Article 14 of the Constitution. The Apex Court observed that the writ
petitioners have been working from 1985 i.e. they have put in about 22
48 (2006) 4 SCC I49 2007 (4) KLT 513 (SC)
207
years service and it will surely not to be reasonable if their claim for
regularisation is denied even after such a long period of service. The Apex
Court further held that apart from discrimination, Article 14 of the
Constitution of India will also be violated on the ground of arbitrariness
and unreasonableness if employees who nave put in such a long service are
denied the benefit of regularization.
As recognized by many international instruments and declarations,
labourers are the most vulnerable group in any society. The intention of the
Supreme Court to provide greater flexibility for the vibrant economic
growth by removing the obstacles must be balanced by taking an equitable I
approach accommodating the higher goals of social justice. The Hon'ble
Supreme Court has itself on numerous occasions championed the rights of
the workers on numerous occasions underscoring the reason for such a
protection because of their vulnerable position and reading the same into
the Constitution50.
50 Rasheed Shaik, “Employer to pay Minimum Wage or shut down his business”. 2010-III-L.L.J.p.42