Article (January-2019)

Articles

Outdated labour laws - Good for none!

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi

01-Jan-2019

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Most of the labour laws of our country have become outdated. They have lost their relevance and moorings, which has been emphasized and elaborated many times. more often the government has been asked and advised by the industrial houses, employers and employees as well to overhaul the labour laws in such manner as to make them relevant in the present circumstances but unfortunately, they have all been of no avail. Even the most important Industrial Disputes Act, which regulates the relationship and the conduct of both - employers and employees, came into existence in 1947, has become out of date. In fact, in a way, it is a pre-independence law, which was conceived of before, the country got freedom.
Very recently, the High court of Madras has again voiced its concern over the antiquated date labour laws. The Count has observed in the case of The Management of SNY Autotech Private Limited vs Inspector of Police, Sriperumbudur that 'unfortunately in this country, the available legislation, have not kept pace with the change in times. The concept of a person working in a particular establishment or a company permanently is no more in existence. Right from the highest executives to the lowest level of workmen; keep on changing in their jobs from one establishment to another always looking for greener pastures. That apart, the technology also keeps changing at a rapid pace and therefore, unless a person upgrades himself/herself consistently at some stage he/she might soon become irrelevant and a dead wood.'
It is true that due to the prevailing laws, many employers do not want to have a permanent workforce and they are resorting to contract labour. The foreign investors, who want to set-up business/factories in India, are not in a position to understand how the Industrial Laws work in this country and they feel that the prevailing laws do not in any way help Industrial growth. For instance, Section 9A of the Industrial Disputes Act provides that no employer, who proposes to effect any change in the conditions of service applicable to any workmen in respect of any matter specified in the 4th Schedule, shall not affect such change without the consent of the workmen. The list provided under Schedule 4 is so exhaustive that virtually for bringing about any change or withdrawing any allowances/concessions, can never be done. The question is how a provision of this nature will suit the present day scenario where every other day, the technology changes and consequently the demand and supply position also changes?
The Madras High Court has also observed that 'the Industrial laws available in this country have become very archaic and unfortunately they have fossilized as they have not changed with the fast-changing environment in the industry. The law which does not meet the needs of the change in times and remains static will prove to be more a hindrance than be of any help both to the employer and the employee. We have already reached such a stage. Regrettably, the legislature, in spite of being aware of the situation, has not chosen to re-vamp the Industrial laws and for reasons best known to them, continue to cling to the outdated, obsolete and outmoded Industrial laws.'
Obviously, the High Court has hit the nail on the head. Unless the existing labour laws are exhaustively changed, it will be a mere day-dreaming and nothing else about the huge foreign investment, which will, without doubt, if brought in will result into the growth of employment in the country. The High Court has ruled on the prevailing situation and has said that 'if the law could have given a speedy solution to the pending disputes between the management and the unions, in one way or the other, such situations would not have arisen.'
The labour laws, as they exist today, mandate that the disputes must be raised before the conciliation officer, who will refer them to the court on the failure of the conciliation proceedings. Thus, there must be a failure report sent to the appropriate government and thereafter the appropriate government will make a reference under Section 10 to the concerned Labour Court. Only thereafter a dispute goes to an adjudicatory body. In the meantime, the misunderstanding and mistrust between the parties keep growing and results in a very complex situation, that is found today in most of the cases. Discussing the case in hand the court said that, 'on the one hand, the management has been complaining that the striking workmen have brought the entire manufacturing process to a standstill and they are indulging into the arms-twisting the management to meet their demands. On the other hand, the Workers' Union has been complaining that the management has resorted to the illegal lockout and therefore, their strike was a legal one, which was being broken by the management with the help of police force. The union has also complained that the orders of the court were misused and the new workmen were being brought in to the factory in the place of the striking workmen. By taking advantage of the orders passed by the court, which had directed the police to ensure that the striking workmen were kept 200 meters away from the factory, the management was indulging into unfair labour practice.'
The Supreme Court in Railway Board, New Delhi and other vs Niranjan Singh has held: 'that the freedoms guaranteed under our constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever manner and place they please. The exercise of those freedoms will come to an end as soon as the 'right of someone else to hold his/her property intervenes. Such a limitation is inherent in the exercise of those 'rights'.
The High Court of Madras had in an earlier judgment of 'AVTEC Limited Power Products Division vs The Superintendent of Police' has said that even under the Trade Unions Act, 1926, the members of the Union are certainly not permitted to involve in violent activities. In such circumstances, giving police protection to the factory by this Court in exercising its jurisdiction under Article 226 of the Constitution of India is not unknown.
As a matter of fact, 'strikes, lock-outs, satyagrahas and demonstrations are nothing new in our country. Promotion of social justice over the past few decades was, to a considerable extent, due to militant and agitational approach of the workmen and not, to any appreciable degree, due to condescension by the management. It is but true that in the process of securing to the workmen more amenities and privileges and better conditions of service, the Industrial Tribunals, Labour Courts, and the Courts of this Country have played a vital role. A negative approach to lawful agitation by the working class to secure higher wages and better living conditions cannot be justified by resort to the plea of maintaining law and order in the industrial sector.'
The Court also stated that 'just as the workers are entitled to the protection of their legal rights by Courts of law, the employers are also equally entitled to the protection of their fundamental right to carry on their lawful trade or business. In our opinion, it is not open to the respondents-Unions to take the law into their own hands and obstruct the permanent workers of the appellant/management from discharging their duties or prevent the appellant/management from doing the guarding work. Sufficient safeguards are provided under the Industrial Disputes Act to prevent exploitation of workers by employers. It is strange to find that one set of workers claimed right to get employment on the basis of some practice and preventing the employer from engaging labour of their choice. If the claim of the workers is allowed, then a day will come when a citizen of this country has to seek his employment in his/her own village, taluk or district. Such a claim would run counter to the rights guaranteed under the Constitution of India. Therefore, the right now claimed by the respondents/workmen on the basis of some practice cannot be countenanced at all.'
After considering the entire spectrum of the facts, the High Court came to the conclusion that a normal atmosphere was not prevailing near the factory premises and there was an uneasy tension in the air. Therefore, in order to maintain the peace and also in order to ensure the free ingress and egress of men and materials, police protection has to be given to the petitioner company, so that the employer may run their day to day activities.
What is most important is that the Government, particularly the Central Government, has been advised and even chastised by the courts many times to adopt immediate measures to make such laws as should be conducive to the peace and harmony in the industry and must also give fillip to the investment for increasing the productivity and more employment opportunities to the young men and women but they all been of no result. However, the million dollar question remains as to when our legislators will hearken the cry of every stakeholder?