MOHD ISHAQ SHAH
George Orwell in his masterpiece ‘Animal Form’ says: All animals are equal, but some are more equal than others. So this satirical and paradoxical statement is perfectly analogous to the helm of affairs in our country- INDIA. Rules/ laws/ ordinances change here as per the situation. So, the statement by S.T Coleridge that he wrote in a letter to his friend,becomes very imperative- what suits my wife doesn’t suit me and what suits me doesn’t suit my wife.
Since the dawn of Independence and especially the adopting of constitution in our country it has been made sure that every section of society must be protected against exploitation and rights must be reserved. But in the current scenario every rule and the law is just kept hidden in papers and the application of laws has been buried along with those documents that govern the different departments and private sector of the country. Almost every section of society is safe and secure to some extent, but if there is anyone who has been suffering still is the laboring class of our country. In comparison to govt. sector the private sector is at the mercy of God. There is no one to care about the said class despite the fact that there are several unions /associations, committees etc, but those organizations also seem to be begging for their own interest and nothing else more than that. One ore tragedy being that the leaders of such unions are politically motivated and they try to serve the purpose of sponsoring parties rather than the public.
In Public Sector, we see the sheer injustice with contract/ adhoc/seasonal/ need based employees. They suffer tremendously as there is no service provision for them. They are deprived of casual /annual/medical/ earned leaves. And the tragedy gets high intensity when such employee has any personal or social urgency, the salary of such period is deducted in his case. And the appointment remains co-terminus with expiry of the session. Further, the provision of staff quarter, salary of vacation/ break/ retention is not paid to such employees.
Corporate sector workers like teachers, Non-Teaching Staff, MTS, front office receptionists, clerks, sweepers, Night Chokidars, helpers /assistants, delivery boys etc have no job security at all. They are always at the mercy of managements. Whenever they wish they fire the employees, deny the salary of vacation period, medical leave, maternity leave, Child Care Leave etc. There is no EPF policy in majority of the private sector establishments and no health insurance and life coverage .
The worst version of violation of labor laws is seen in the private sector of education in the whole country in general and in Jammu & Kashmir in particular which gives the owners /management a chance to exploit the unemployed youth and the worst situation gets more adverse when the authorities turn a deaf ear to the plight of those who are complainants.
Let’s examine the labor laws and assess whether those laws are enforced on ground level or not.
In the Constitution of India from 1950, articles 14-16, 19(1)(c), 23-24, 38, and 41-43A directly concern labour rights. Article 14 states everyone should be equal before the law, article 15 specifically says the state should not discriminate against citizens, and article 16 extends a right of “equality of opportunity” for employment or appointment under the state. Article 19(1)(c) gives everyone a specific right “to form associations or unions”. Article 23 prohibits all trafficking and forced labour, while article 24 prohibits child labour under 14 years old in a factory, mine or “any other hazardous employment”.
Articles 38-39, and 41-43A, however, like all rights listed in Part IV of the Constitution are not enforceable by courts, rather than creating an aspirational “duty of the State to apply these principles in making laws”. The original justification for leaving such principles unenforceable by the courts was that democratically accountable institutions ought to be left with discretion, given the demands they could create on the state for funding from general taxation, although such views have since become controversial. Article 38(1) says that in general the state should “strive to promote the welfare of the people” with a “social order in which justice, social, economic and political, shall inform all the institutions of national life. In article 38(2) it goes on to say the state should “minimize the inequalities in income” and based on all other statuses. Article 41 creates a “right to work”, which the National Rural Employment Guarantee Act 2005 attempts to put into practice. Article 42 requires the state to “make provision for securing just and human conditions of work and for maternity relief”. Article 43 says workers should have the right to a living wage and “conditions of work ensuring a decent standard of life”. Article 43A, inserted by the Forty-second Amendment of the Constitution of India in 1976, creates a constitutional right to codetermination by requiring the state to legislate to “secure the participation of workers in the management of undertakings.
Among the employment contracts that are regulated in India, the regulation involves significant government involvement which is rare in developed countries. The Industrial Employment (Standing Orders) Act 1946 requires that employers have terms including working hours, leave, productivity goals, dismissal procedures or worker classifications, approved by a government body. The employment agreement is also governed by the suitable confidentiality, non-disclosure agreement (NDA) and non-compete clause (NCC) in agreements with employees. It has its roots in trade secret legislations under common law and intellectual property law. These may include the type of information that is likely to be disclosed, the manner in which it should be used and restrictions on disclosure post-termination.
Some of India’s most controversial labor laws concern the procedures for dismissal contained in the Industrial Disputes Act 1947. A workman who has been employed for over a year can only be dismissed if permission is sought from and granted by the appropriate government office. Additionally, before dismissal, valid reasons must be given, and there is a wait of at least two months for government permission, before a lawful termination can take effect.
A permanent worker can be terminated only for proven misconduct or for habitual absence. The Industrial Disputes Act (1947) requires companies employing more than 100 workers to seek government approval before they can fire employees or close down. In practice, permissions for firing employees are seldom granted.] Indian laws require a company to get permission for dismissing workers with plant closing, even if it is necessary for economic reasons. The government may grant or deny permission for closing, even if the company is losing money on the operation.
The dismissed worker has a right to appeal, even if the government has granted the dismissal application. Indian labor regulations provide for a number of appeal and adjudicating authorities – conciliation officers, conciliation boards, courts of inquiry, labor courts, industrial tribunals and the national industrial tribunal – under the Industrial Disputes Act. These involve complex procedures. Beyond these labor appeal and adjudicating procedures, the case can proceed to respective State High Court or finally the Supreme Court of India.
Bharat Forge Co Ltd v Uttam Manohar Nakate [2005] INSC 45, a worker found sleeping for the fourth time in 1983. Bharat Forge initiated disciplinary proceedings under the Industrial Employment Act (1946). After five months of proceedings, the worker was found guilty and dismissed. The worker appealed to the labor court, pleading that his dismissal was unfair under Indian Labor laws. The labor court sided with the worker, directed he be reinstated, with 50% back wages. The case went through several rounds of appeal and up through India’s court system. After 22 years, the Supreme Court of India upheld his dismissal in 2005.
So,the matter of justice being that the certain constitutional provisions are violated in so for. And the judiciary and the administration seem to seek justice before the capitalists, aristocrats, feudal lords etc. Therefore, the democratic setup seems helpless as if there is no alternative available to this menace. It is mark of question for both the administrative and the constitutional set up of the country that claims to be the world largest democracy. The question that strikes the mind of every citizen like me is: how can we expect the country be Aatma-Nirbur and what is the logic behind Viksit Bharat Sankalp when the working class of our nation suffers only for being workers and not usurers.
The author can be reached at ishaq7007@gmail.com
