Article (January-2022)

Articles

Labour Laws are not meant to be exploited by Greedy ones

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi

01-Jan-2022

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The desire is unending. The more one gets, the more one desires. This is a human weakness. It is very aptly said that 'Yeh Dil Maange More' (This heart desires more). It does not mean that any curb should be imposed on the wings of the human ambitions to soar high. In fact, it is the vision grounded on the reality that has been mainly responsible for achieving the lofty goals. Our Industrial jurisprudence may really sound strange to most of the people, wherein a senior manager of a bank getting salary of Rs.58,339 per month has been held to be a 'workman' under section 2(s) of the Industrial Disputes Act, 1947, and the management had to even pay Rs. 1,07,73,736/- by way of the compensation. Thus, it becomes clear that any procedural lapse on the part of the Human Resource Managers results in heavy costs to the organisation. Such lapses generally occur mainly due to wrong legal advice. Therefore, it is imperative on the part of the Managements that they follow the expert legal procedures.

The concept of 'workman is central to the concept of an industrial dispute as an industrial dispute can be raised either by a 'workman' or an 'employer.' Since the Industrial Disputes Act, 1947 is a piece of beneficial legislation, the courts have enlarged the scope and applicability of this Act by giving a wide interpretation to the term 'workman'. Section 2(s) defines workman as any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, terms of employment are express or implied and include any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of the dispute. The amounts of money to be paid as wages have now become almost irrelevant. The Courts have interpreted this definition and have identified various determining factors to know whether a person is a 'workman' or not. The factors which should be considered are - (a) whether there is a Master-Servant relationship', (b) when a person is performing various functions which overlap in their characteristics, the nature of the main function for which the claimant is employed should be considered, (c) work is either manual, skilled, unskilled, technical operational, clerical or supervisory in nature, the mere fact that it does not fall within the exception would not render a person to be workman, and hence the following factors must be taken into consideration. The Delhi High Court by an order dated 12.10.2021 has directed the All-India Institute of Medical Sciences to pay a driver Rs.50 lakh as salary in addition to Rs.19,900 per month toward monthly pension besides directing the AIIMS to deposit Rs.30,000 as a lifetime validation amount for being enrolled under the Employees and Health Scheme to a driver whose services were terminated in Dec. 1998.  It is unbelievable an able-bodied person, that too, an experienced driver can remain unemployed for such a long period provided he was willing to work. A driver can easily find a job or ply a bus, truck, taxi, three-wheeler auto, e-rickshaw etc.

In this context it is pertinent to refer to a judgment Delhi High Court (Delhi Transport Corporation vs. Sh. Ram Kishan (Ex-Driver), 2010 LLR 394 (Del. HC). Wherein it has been held as under :

"The fact that the respondent/workman was working as a Driver with the petitioner/ management and therefore, was a skilled person, it is hard to believe that even this long period from 14th September, 1990 till the award having been passed on 2nd December, 2003, he would have remained idle, especially when there is great demand of the drivers to drive the vehicle especially in big cities. Therefore, it is safe and reasonable to presume that the respondent/workman must have been gainfully employed as a Driver even during this period and he cannot be permitted to take advantage of the pendency of the proceedings before the Court and get a substantial amount of public money without having worked.  No work no pay should be the rule."

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Offenders usually bend or break Laws

There are a large number of cases where the workers are absent or keep away from work and do not report for work despite offers made by the employers. On the contrary, they approach the Labour authorities and allege that their services have been dispensed with and seek reinstatement with back wages by abusing the process of law. Now in successive judgments, the Courts have held that such a workman cannot reap the benefits of his own fault.

The Industrial Disputes Act is the pivot of the labour laws. It has undergone comprehensive changes from time to time. It mainly stands on to fulcrums of dispute resolution and adjudication. However, the undercurrent is to dispense justice and prevent misuse of its benign provisions. Hence the Industrial Disputes Act provides the mechanism of the dispute resolutions supported with necessary infrastructure so that the energies of partners in production may not be dissipated in counterproductive battles and assurance of industrial justice may create a climate of goodwill. The emergence of the concept of welfare state implies an end to the exploitation of workmen and as a corollary to that collective bargaining came into its own and lest the conflicting interests of workmen and employer disturb the industrial peace and harmony, machinery for adjustment of such conflicting interests became the felt need of time, because if the disputes are not settled, they would result in a strike or lockout and dislocation of business essential to the life of the community. At the same time, the provisions of the Act are meant to help the needy, and as such these provisions are not to be invoked by a person who is greedy. (Mukesh Khanna vs. Chandigarh Administration, Chandigarh, 2000 LLR 168 (P&H HC).

 The Bombay High Court has also observed that labour laws are not meant to harass the employer but to get the injustice undone. The machinery of the Act cannot be exploited to extract money from the employers in an unjust way. (M/s. Purofil Engineers Pune vs. Shaikh Anwar Abdul Raman, 2000 LLR 268 (Bom. HC).

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H.L. Kumar is Advocate, Supreme Court of India, New Delhi.