Introduction:
Initially, Labour Law intended to protect the interest of employers in consequence of the breach of contract. Now it can be said that the principal motive behind the enactment of Labour law is to protect the interest of Employer as well as laborers from exploitation and to prohibit forced labour. Quoted by Plato “Necessity is the Mother of invention”. The evolution in the field of labour law was first witnessed in 1859 by the enactment of Workmen’s Breach of Contract Act, 1859. This enactment was the consequence of the conflict between the employers and the labourers regarding the terms of the contract. Evolution in the field of labour law grabs major limelight by the establishment of International Labour Organisation in 1919 as an agency of the League of Nations following the Treaty of Versailles, which ended World War I. The principles of ILO are also incorporated under Indian Constitution which can be witnessed under Articles 14, 16, 19(1)(c), 21, 23, 24, 35, 38, 39, 39A, 41, 42, 43-A, 46, 47 etc. Labour laws in India are also referred to as Industrial law. Labour Law manages the relation between trade unions, employers and employees.
Exigency and Evolution:
Labour law claims its existence mainly due to the exploitation witnessed by the workers and the low cost paid to them for their works. Workers demanded preferable conditions at the workplace which results in their exploitation. The history of Labour law can be traced with the history of Britain as India was the colony of the British Government till the enactment of the Indian Constitution. It can be said that the laws enacted by the British Government were more favourable and inclined to their employers that curtail the rights of the workers which tends to their exploitation. The evolution of Labour laws in Britain can be mainly noted after the establishment of the International Labour Organization in 1919.
The ILO was established as an agency of the League of Nations following the Treaty of Versailles. In India, the textile goods were in the paramount position in comparison to other nations hence British Government enacted Factories Act in 1833, by which they can balance the economy by making the labour costlier which directly affects the production in textile works. 1833 Act brought several up-gradations viz., it established a system to ensure that regulations were enforced. Also, it gives the provision that no children were to work in factories under the age of 9. A maximum working week of 48 hours was set for those aged 9 to 13, limited to eight hours a day; and for children between 13 and 18, it was limited to 12 hours daily. The Act also required children under 13 to receive elementary schooling for two hours each day.
Court’s Dictum:
1. In UP State Road Transport Corpn v. UP Parivahan Nigam Shishukh Berozgar Sangh, (AIR 1995 SC 1114) it was held that other things being equal, a trained apprentice should be given preference over direct recruits.
2. In RPFC v. T S Hariharan, (1971 Lab IC 951 SC) it was held that temporary workers should not be counted to decide whether the Act would apply.
3. In Indian Hume Pipe Co. Ltd. v. Its Workmen, (AIR 1960 SC 251) it was held that gratuity has to be considered to be an amount paid unconnected with any consideration and not resting upon it and has to be considered something given freely or without recompense. It does not have the foundation on any legal liability, but upon a bounty steaming from appreciation and graciousness. Long service carries with the expectation of an appreciation from the employer and gracious financial assistance to tide over post retrial difficulties.
4. In Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited and Others, (2016 16 SCC 663) wherein the SC held that where an employer has restrained the employee from working, the employer cannot plead ‘no work no pay’. Therefore, the SC has attempted to reiterate that the principle of ‘no work no pay’ applies only in instances where the employee has voluntarily absented himself from work, and not where the employer has restrained the employee from attending work.
Does Constitution Allow Inconsistent Laws?
Yes, in 2014, Rajasthan amended the Industrial Disputes Act, 1947. Under the Act, certain special provisions with regard to retrenchment, lay-off, and closure of establishments applied to establishments with 100 or more workers. Rajasthan amended the Act to increase the threshold for the application of these special provisions to establishments with 300 workers. This amendment to the central law prevailed in Rajasthan as it received the assent of the President.
Uttar Pradesh government in 2020 passed an ordinance to suspend most of the labour laws in the state, in order to attract new companies to invest in the state amid the ongoing coronavirus crisis.
Madhya Pradesh Chief Minister Shivraj Singh Chouhan held a press conference on Thursday announcing how the state government will exempt new manufacturing units from all, but some provisions, in the Factories Act, 1948 for the next 1000 days.
Even though the law which is made by parliament is of uniform application through the country but still the parliament leaves some room for the state governments to modify and adjust the laws as per their needs. In the same the way some relaxation was incorporated in the Industrial Dispute Act, 1947 and in Factories Act, 1948 in order to give States the autonomy to practice the same as per their needs.
State’s Discretionary Power:
(i) Under Industrial Dispute Act
Section 36B of Industrial Dispute Act, 1947, By virtue of this provision the State Government is allowed to exempt any industrial establishment from all or any of the provisions of this Act.
By order of the Governor of Madhya Pradesh, the State Government exempted the industries from the provisions of the Act except for the provisions of Chapter V-A and Section 25-N to 25-R of chapter V-B for the next 1000 days from the date of publication i.e., 6th May 2020. This order was also made applicable to those new industries which will be registered in the Factories Act, 1948 and start production for the first time in the next 1000 days after 6th May 2020.
So what is in force are only the provisions of the Lay-Off and Retrenchment and they have exceeded the power of exemption provided under Section 36B because under the above-mentioned section only the industrial establishment carried on by the department of the government can be exempted but here in the notification they have given a blanket exemption to all the factories whether carried on by Government or not. This part of the notification makes it ultra-virus to the powers provided by the Act. And most importantly the notification has ceased the provision relating to legal strikes and lockouts, regarding the authorities to settle the disputes etc.
(ii) Under Factories Act.
Section 5 of the Factories Act, 1948, In exercise of the powers conferred by Section 5 of the Factories Act, 1948, the Govt. of M.P. exempted all the factories registered under the Act, from all the provisions of the Factories Act except sections 6-8 and Sections 21-41H, section 59, 65, 67, 79, 88 and 112 and rules made thereunder for three months from the date of publication of the notification i.e., 6th May 2020.
The above-mentioned power under section 5 can be exercised during the public emergency only. The strict compliance of the provisions is necessary because they are part of the welfare legislature achieved by the decades of suffering by the labour class to prevent their exploitation and suppression.
That is why the condition of the exemption is grave and serious in nature so that the health and life of the labourers cannot easily be put on the smokestack by capitalists as well as the government.
The government suspended the provisions regarding Health contained in Chapter III, Welfare Chapter V, Working Hours Chapter VI, Employment of young Persons Chapter VII, etc. All these provisions were enacted for the welfare, safety and for better health and quality of life of the workers but all these are suspended in one go in the name of economic advantage and high rates of employment. Even if it results in higher employment rates but at what cost, at the cost of the health of the workers, at cost of their security of tenure, at cost of their rights which they have accomplished by decades of struggle of the working class.
Changes in working hours-
Section 64(2) of the Factories Act, 1948 allows state governments to exempt factories from provisions related to work hours for a period of three months if factories are dealing with an exceptional amount of work.
The Gujarat, Himachal Pradesh, Rajasthan, Haryana, Uttar Pradesh, Goa, Assam and Uttarakhand governments passed notifications to increase maximum weekly work hours from 48 hours to 72 hours and daily work hours from 9 hours to 12 hours for certain factories by exercising the power provided by this provision. Further, Madhya Pradesh has exempted all factories from the provisions of the Factories Act, 1948 that regulate work hours. These state governments have noted that an increase in work hours would help address the shortage of workers caused by the lockdown and longer shifts would ensure fewer numbers of workers in factories allowing for social distancing to be maintained.
Opinion of scholars:
First talking from the Utilitarian perspective as propounded by the Jeremy Bentham, the ordinance which was passed if becomes law will provide the maximum benefit to the industrialists and will put the workers’ life, health and the security of the jobs at stake. Hence it results in the happiness of the few i.e. capitalists only. And it seems to be a step towards capitalism which is also against our ideals of the preamble and the directive principles. The ordinance is not providing the maximum utility to the maximum people hence it is not morally and politically accurate to be passed.
Now talking about the individual rights on which John Stuart Mill put stressed while revising Bentham’s doctrine. His book On Liberty (1859) is the classic defence of individual freedom. The ordinance which results in giving the free hire and fire option to the industrialist as per their requirements and needs would leave no liberty to the working class to opt for the employment of his choice and it becomes difficult for him to settle harmoniously and live an organised life. His life will come under the direct control of the Capitalists class needless to say under the control of the need of capitalists’ class.
Conclusion:
Worthy to mention the wordings of the eminent French philosopher Baron de Montesquieu “It is necessary from the very nature of things that power should be a check to power”. It can be said that every authority should be vested power with some check and balance just to lessen the scope of misusing those powers. The above-stated cases cite that the notification made by the State is directly affecting the rights of labourers which results in their exploitation.
Article 19(1)(c) provides for the formation of Association and Union, which is a fundamental right in nature and also these rights are supported by various legislations and these rights are also curtailed by making the notification regarding the formation of Trade Union as it was the sole institute which represents the labourers. In the era of a pandemic the rights of the weaker section of society must be protected and this responsibility delegates to every citizen.
This article has been written by Deeba Faryal, She is currently enrolled as an Advocate under Maharashtra and Goa State bar council and preparing for Judicial Services.
