While legislation to iron out creases in the corporate and investment sectors is going apace, labour law has not seen any major reform in two decades. Courts are struggling to interpret obsolete statutes in a fundamentally altered situation. Workers have lost faith in the system and hardly approach the tribunals. The trade union movement is comatose. The law ministry’s vision statements have little space for the bottom billion.
The present accepted practice of keeping workers on unconscionable contracts for decades came into focus in a recent case in the Supreme Court. Some bandsmen who had been playing music for the Tambaram air force station in Chennai since 1982 had been clamouring for regularisation for a long time. In the administrative tribunal, the government argued that there was no provision for regularisation and no sanctioned posts were available. The matter was taken to the Madras High Court. It found it unjust to continue to employ the bandsmen for such a long period without a regular pay scale for them. The government appealed to the Supreme Court against the high court stand.
In tune with the current view of the Supreme Court, the appeal was allowed and the claim for regularisation was rejected. “It is true that they were working for several years as part-timers and they are not getting salary which is given to regular employees,” the court conceded. But, it said, in addition to daily wages they were given allowances for haircuts, washing uniform and, at times, also given breakfast and lunch. Therefore, they did not have any right to get absorbed in any cadre, the judgment stated in the case, Union of India vs A S Pillai.
A large number of such cases, in which workers are kept on daily wages for decades, have been coming to the Supreme Court regularly, after trawling the tribunals and courts below for years. Casual workers and temporary or ad hoc employees meet the same fate as the Tambaram bandsmen. Four years ago, a Constitution bench of the Supreme Court had shut the doors in their faces in the case, State of Karnataka vs Uma Devi. It declared: “There is no fundamental right in those who have been employed on daily or temporary or on contractual basis to claim that they have a right to be absorbed in service.”
In another judgment recently (Transport and Dock Workers’ Union vs Mumbai Port Trust), the court granted that the argument based on equality under Article 14 of the Constitution could be “a slippery slope, and a fine balancing act must be done by the court to avoid slipping down the slope”. In this case, the duty hours of the clerical staff were increased by one hour for those recruited since 1996. The port trust justified it pointing out that “due to change in the technology and with introduction of privatisation and setting up private ports with whom it has to compete” it had to adopt the new policy.
Accepting the contention and dismissing the employees’ appeal, the Supreme Court clarified: “Mere inequality is not enough to violate Article 14. Differential treatment, by itself, does not constitute its violation. It denies equal protection only when there is no reasonable basis for differentiation.” In the modern world, the court added, “business houses have to face competition with others. To do so they may have to have longer working hours and introduce efficiency, while avoiding labour disputes. It is necessary for the progress of the country.”
There is a shift in the high courts as well. In the case, Amar Chakravarty vs Maruti Suzuki India Ltd, an employee was dismissed for misconduct ten years ago. This was done without the mandatory enquiry. When the dismissal was challenged before the labour court, it ruled that the management must prove that the employee was guilty. But the Punjab and Haryana High Court decided in the case that it was for the employee to prove that he was not guilty. The normal rule is that if a person accuses another of being guilty, the person who alleges has the burden to prove it. But Supreme Court judgments of recent years can be cited on both sides. Relying on one set of decisions, the high court put the burden of proof on the employee. This was reversed by the Supreme Court.
The general trend against the labour in court decisions has been noted even by some Supreme Court judges. Earlier this year, in a case involving Punjab Warehousing Corporation, it noted a “visible shift” in matters of livelihood issues. It said: “The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process and an impression is created that the constitutional courts are no longer sympathetic towards the plight of industrial or unorganised workers.”
