Employment Law And Wretched Functionaries Of The Legal System

Employment is a term, synonymous to life, dignity and livelihood for many, and regarded as an indispensable component under the core values of the Constitution of India. It is a concept that relates to the most fundamental and inherent rights recognised universally, and cannot be taken away under ordinary circumstances. In this way, employment for an individual becomes a source that allows someone to fully develop and utilise the human qualities, intelligence, talents, and conscience to satisfy physical, spiritual and other needs of life. Simply put, it is that stone upon which an edifice of a building is constructed as it provides human beings a platform to appreciate other rights and avail their benefits. Employment in its habitual sense is thought of an activity, whereby, an employee receives remuneration in form of money from his employer for contributing towards any material requirement the employer had. However, in true sense, all persons require more from their jobs as opposed to just money and job security. Here, the article talks of social welfare and security benefits that protect and maintain one’s dignity during and after work tenure. A special attention has been bestowed upon certain functionaries in the noble profession of law as numerous employment concerns are being raised presently considering its unprofitable nature and the amount of toiling it demands initially. Through this article, I shall endeavour to explain the rationale behind position of lawyers and advocates’ clerks as they are treated under the prevailing labour and industrial laws. Subsequently, an attempt has been made to discern and highlight the pitiful condition of those vital stakeholders when it comes to enjoyment of social security benefits and remedial options available to them in case a dispute arises with employer. In addition to all, this article touches upon the measures that ‘have been’ and ‘ought to be’ adopted by the Appropriate Government, Judiciary and concerned Bar Councils.

It is a matter of common knowledge that ‘Employment Law’ is a broad field of law, regulating the relationship between an employer and employees if work is performed in subordination to the employer. In other words, it is regarded as law for the protection of dependent workers. Employment or simply ‘work to earn livelihood’ in India, is arguably a part of Article 21 of the Constitution of India, but, surely consistent with State’s obligation under Part IV of the Constitution[1] and hence, paving way for enactment of various legislations, rules and regulations for resolving disputes and protecting the interests of the stakeholders.

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The origin of labour and laws can be traced back to British Raj and are predominantly workmen oriented because of an obvious reason that the workers form part of the economically weaker section between the two parties involved in any employment contract. Ever since this area of law remains dynamic in terms of enactment of statutes, amendments and development of comprehensive jurisprudence due to certain reasons such as escalating expectations of the workers, the hopes extended by Welfare State, uncertainties caused by tremendous structural developments in industry, the decline of authority, the waning attraction of the work ethics and political activism in the industrial field, all seem to have played some role.

Generally, employment law is a wider expression that covers labour and industrial law, but, in India, these terms are used interchangeably. However, there still exists a distinction based on the nature of work, establishment and remuneration. Furthermore, the legislations can be broadly classified into two main heads: a) Regulatory, b) Social Welfare or Beneficial. As the very title suggest, the former statute books would supervise the conduct of employer-employee relationship and synchronize the dispute, if any, and the latter piece of legislations would shield the interests and provide benefits, mostly, to the employees.

Current Position of Lawyers as Profession:

In view of the aforesaid, let us examine as to who all are entitled to the benefits under the prevailing labour legislations and whether or not the lawyers/advocates discharging an onerous duty come within the purview of such laws.

A legislation upon which other industrial statutes rest is The Industrial Disputes Act, 1947, (“Act”). It brings the meaning and scope of the words ‘workman’ and ‘industry’ to the fore. Almost all the other laws import the meaning of the said terms for their respective purpose. Section 2(s) of the Act defines the word workman[2] and includes any person employed to do any manual, skilled, unskilled, operational, technical, clerical or supervisory work. Notably, the Act being a beneficial piece of work is has been left sufficiently open ended so as to allow a wide gamut of persons to be covered by it, included workers employed through contractors, temporary workers, etc. Albeit, no straight jacket formula is accessible to figure out who can be a labourer, an expansive number of legal points of reference exist whereby numerous sorts of livelihood have been avoided from the meaning of ‘workman’ under the Act.

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A few judicial precedents can be instructive to analyse the current position of lawyers and other highly skilled professionals under the labour laws. The Supreme Court has categorically held in a case that teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as “workmen” within the meaning of Section 2(s) of the Act.[3] Imparting of education is in the nature of a mission or a noble vocation as a teacher educates children, moulds their character, builds up their personality and makes them fit to become responsible citizens. Similarly, the Apex Court iterated that legal assistants cannot be termed as ‘workman’ under the said Act in no circumstance whatsoever and remarked the same about that any such professional.[4] There is no dearth of cases when it comes to exclusion of highly skilled professionals like lawyers, teachers, doctors, bank managers etc. from the ambit of workman, and thus, implying the fact that no labour legislation apply to such personnel simply because they are believed as noble professions and assumed to face nearly no social malady.

Clearly, a common link prevailing in all the referred case laws is that the court has settled the fact that ‘nature of actual work’ is the decisive factor while considering such cases and not what has been stated in his contract or the designation of the employee.[5] The real test to determine the actual work performed by the employee is to see if the work involves a certain minimal degree of creativity and exercise of intellectual skill, and taking an initiative in the absence of supervision or control. In different words, if the employee is required to think on his feet in performing his functions, is required to make certain decisions independently as to his functioning, and is not subject to supervision and control in respect of matters in which he makes independent decisions, then such factors can lead to a conclusion that he is not a workman.

There is no denying to the fact that professionals possess better means to sustain themselves, however, every profession does consist a vulnerable and exposed section of the members. Even otherwise, if the above distinction and exclusion of highly skilled professionals from the ambit of workmen is ignored, it may be safely construed keeping in mind our Constitutional Scheme that any person working to earn his livelihood must be guaranteed adequate working conditions, benefits and fair mechanism to resolve the disputes inter-se. The other reason that propels me to bring up this issue within the legal field is that lawyers have no social security as there is no welfare scheme ever framed by any of the Governments, if a lawyer dies an untimely death, there is no security to his family, and the entire family is ruined. [6] This makes this noble class of professionals one of the most insecure and unprotected in India.

Consequently, the present work is dedicated to a few contributors in the administration of justice including fresh advocates in the practice area, Judicial Clerks-cum-Research Assistants and Advocate’s Clerks. The subsequent portion of the work would deal with the sympathetic condition of these vital stakeholders of the legal family and throw some light to the measures that ‘have been’ and ‘ought to be’ advanced to reduce their plight.

This is not a hidden fact that survival of fresh advocates in the field of litigation is not a cakewalk. It requires a lot of mental, physical and emotional strength, and is something not very lucrative to even satiate one’s basic needs. This truth is applicable for both new lawyers who work under a senior lawyer or start their practice independently. A large number of them are paid a consolidated salary which is not adequate considering the amount and nature of work they are expected to perform. Ordinarily, they are required to do a lot of grass root level work at different courts (in case of a metropolitan city), and are not paid a separate travel allowance for the same. It also needs to be considered that a considerable section of the crowd do not get requisite leaves in the month making their situation even worse.

[1] State of Karnataka v. Umadevi (3), (2006) 4 SCC 1, Also refer: Centre for Environment & Food Security v. Union of India & Ors., (2011) 5 SCC 676.

[2] § 2(s), The Industrial Disputes Act, 1947.

[3]  A. Sundarambal v. Govt. of Goa, Daman and Diu, (1988) 4 SCC 42.

[4] Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava, (2007) 1 SCC 491.

[5] Hussan Mithu Mhasvadkar v. Bombay Iron & Steel Labour Board, (2001) 7 SCC 394.

[6] Website of the Bar Council of India, Agitational Programme HER Bill 2011, Published on: 12th June 2012.

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Aayushi Bana

Aayushi Bana, Content Writer, Law Corner Student of 7th Semester, Jamia Millia Islamia, New Delhi

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