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					                                  CHAPTER-VI
                             REVIEW OF LAWS


B      efore embarking on a detailed
review of the labour legislation in our
                                                   governance of the country, and it is
                                                   the duty of the State to apply these
                                                   principles in making laws. Articles 38,
Statute Book it is necessary to keep in            39 39A, 41, 42, 43 and 43A are
view certain important parameters. In              principles which are relevant to the
earlier chapters and paragraphs we                 work of our Commission. It is also
have referred to the articles of the               relevant to remind ourselves that
Constitution of India that provide the             we now have moves to redefine
parameters of our review.     Yet, they            ‘right to work’ which figures in the
bear repetition as a preface to the                Directive Principles (Article 41) and
ensuing     paragraphs.     Article    19          invest    it    wi th      the    status         and
guarantees freedom of speech and                   sanctity of a fundamental right.
expression,     freedom      to       form
associations or unions and freedom to              6.2      Apart from these, it is also
practice any profession or to carry on             necessary       to      refer    to        two    or
any occupation, trade or business,                 three    other        matters.        The        ILO
subject to reasonable restrictions                 declaration           on         Fundamental
that may be imposed by law on the                  Principles      and      Rights       at    Work,
exercise of these f reedoms. We                    adopted by the International Labour
also have Article 23 pr ohibiting                  Conference in June 1998, declares
traffic in human beings and forced                 inter alia that all Member States
labour, and Article 24 prohibi ting                whether        they     have     ratified        the
employment of children in factories                relevant conventions or not have an
etc.     These are Consti tutional ly              obligation arising from the very fact
binding. Besides we have a very large              of membership in the Organisation, to
number of Directive Principles of                  respect, to promote and to realise, in
State Po licy in Part       IV of the              good faith and in accordance with the
Constitution. These principles are not             Constitution the principles concerning
enforceable by any court but are                   the fundamental rights which are the
nevertheless fundamental in the                    subject of those conventions, namely,


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(a)     freedom of association and the               “We are in a prolonged period of
       effective recognition of the right            adjustment to an emerging global
       to collective bargaining                      economy …… The standard policy
                                                     response was f ormulated by the
(b)    the elimination of all forms of               Bretton Woods Institutions in the
       forced or compulsory labour;                  1980s at the time of debt crisis and
                                                     subsequently applied in the transition
(c)     the effective abolition of child             economies.           It was based on two
       labour; and                                   fundamental assumptions :            That free
                                                     markets are sufficient for growth, and
                                                     they were very nearly sufficient for
(d)    the elimination of discrimination
                                                     social         stabi lity    and      political
       in respect of employment and
                                                     democracy. The strategy for economic
       occupation.
                                                     success         basically       consisted    in
                                                     transferring           r esponsibilities    fo r
6.3       In the next year i.e. 1999, the            regulations from the state to the
Report of the Director General to the                market.      These policies are influential
International        Labour    Conference            because         they     were    simple     and
was on Decent Work. In his report,                   universal. They brought necessary
the Director General emphasised                      macro-economic discipline and a new
the following: The primary goal of                   spirit of competition and creativity to
the     ILO    today    is    to   promote           the economy.           They opened the way
opportunities for women and men to                   for      the      application        of     new
obtain decent and productive work in                 technologies and new management
conditions of freedom, equity, security              practices. But they confused technical
and human dignity. The ILO is                        means        of     action      –    such    as
concerned with al l workers. Al l                    privatisation and de-regulation – with
those who work have rights at work.                  the social and economic ends of
The ILO is concerned with Decent                     development.         They became inflexible
Work. The goal is not just the                       and did not take the social and
creation of jobs but the creation                    pol itical        context       of    markets
of     jobs,   of    acceptable    qual ity.         sufficiently into account. Their impact
The Director General also pointed out                on people and their families was
that                                                 sometimes devastating. Increasing


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doubts about the efficacy of these                  Bretton Woods institutions should
prescriptions after a          decade of            make    decent    work     development
experience        in    the   transi tional         objectives a part of their basic
economies came to a head with the                   framework. I believe that a system-
recent crisis in the emerging markets.              wide   commitment        to   promoting
That crisis marked a turning point in               decent work, as a major development
public opinion.        The result has been          goal and our instrument to reduce
both greater uncertainty and greater                poverty, would not only benefit all our
receptivi ty to a wider range of                    constituents but would also enrich the
opinions, including the views of                    policy agenda of other organisations.
developing countries and of civil
society.”                                           6.6    That does not mean that we
                                                    will always be in agreement, and the
6.4     In June 2001, in his Report to              ILO and the IMF or the World Bank
the International Labour Conference,                may    not    come    to      the    same
the Director General said, inter alia,              conclusions in any given case. Each
                                                    organisation has its own identity and

“... The multilateral system must                   constituents, and its own mandate.

respond to persistent demands for                   From our perception, when it comes

new, better and more coherent                       to the hard decision there is no

international frameworks. We have                   reason why it should so often be the

made progress, but not enough. I                    social goals that are sacrificed.”

believe that the multilateral system is
still under-performing in this respect.             6.7     Apart from these, it is also
                                                    necessary to take note of the fact that

6.5     From the ILO we must push for               the Government of India ratified

greater unity of action. In turn, the               Convention 122 on Employment and

ILO must stand ready to engage as a                 Social Policy in 1998. This convention

committed team player. This means                   was adopted by the International

not only working together but also                  Labour Conference in 1964. It is

taking on board each other’s goals.                 relevant both to point out that the

Just as the ILO has to integrate the                Convention was ratified after the

need for sound macro economic                       Government of India embarked on the

policies into its understanding, so the             new economic policy and to reproduce


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in full the text of Article 1 of the                        national extraction or social
Convention:                                                 origin.

                                                     3.     The said policy shall take due
“Article 1
                                                            account of the state and the
                                                            level of economic development
1.     With a view to stimulating
                                                            and       mutual      relationships
      economic          growth         and
                                                            between employment objectives
      development, raising levels of
                                                            and other economic and social
      living,      meeting        manpower                  objectives, and shall be pursued
      requirements, and overcoming                          by methods that are appropriate
      unemployment         and     under   -                to    national     conditions    and
      employment, each Member shall                         practices.”
      declare and pursue, as a major
      goal an active policy designed to
                                                     6.8      It is not without significance
      promote full, productive and
                                                     that this convention was ratified by
      freely chosen employment.
                                                     India at a time when unemployment
                                                     levels are high even if reckoned
2.     The said policy shall aim at
                                                     purely      in terms      of employment
      ensuring that
                                                     exchange statistics. One therefore,
                                                     has to presume that the Government
(a)   There is work for all who are
                                                     is now committed to pursue an active
      available for and seeking work.
                                                     policy designed to pr omote fu l l ,

(b)   Such work is as productive as                  productive        and     freely    chosen
                                                     employment.
      possible

                                                     6. 9     From what we have cited about
(c)   There is freedom of choice of the
                                                     the commitments of the Government
      employment and the fu l lest
                                                     of India in the preceding paragraphs it
      possible opportunity for each
                                                     can be deduced that the following
      worker to qualify for, and to use              rights      of   workers     have      been
      skill and the endowments in a                  recognised as inalienable and must,
      job for which he is well suited,               therefore, accrue to every worker
      irrespective of race, colour, sex,             under any system of labour laws and
      re ligion,     pol itical    opinion,          labour policy. These are:


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(a)    Right to work of one’s choice              becomes signi ficant. There is no
                                                  accepted definition of this term or of
(b)    Right against discrimination
                                                  i ts      companion,         namely,       the
                                                  unorganised sector; however, one can
(c)    Prohibition of child labour
                                                  presume that there is a certain broad
(d)    Just and humane conditions of              picture at the back of one’s mind
       work                                       when one talks of organised sector in
                                                  contradistinction to the unorganised
(e)    Right to social security
                                                  sector.         It is relevant, to point out
(f )   Protection of wages including              that       in     the      Trade        Unions
       right to guaranteed wages                  (Amendment) Act, 2001, (Act 31 of
                                                  2001) the explanation in clause 8 of
(g)    Right to redress at of grievances          the Bill states that for purposes of the
                                                  section, ‘unorganised sector’ means
(h)    Right to organise and form trade
                                                  any sector which the appropriate
       unions and right to collective
                                                  government may, by notification in
       bargaining, and
                                                  the official gazette, specify.      Even so,
(i)    Right    to   participatio n    in         should we del imit the organised
       management.                                sector in terms of the number of
                                                  persons          employed          in      the
6.10     One cannot overlook the fact             establishment in that sector, or in
that rights are also related to duties.           terms of the capital invested in the
                                                  establishment, or in terms of the level
6. 11 If our understanding is correct,            of technology that obtains in that
what exactly should labour laws do?               establishment, or on the basis of any
Should labour laws be confining their             other criteria like turnover, wage cost
attention only to a section of the                as a proportion of total cost, etc.?
labour force which is a small part of             Also, would the availability of legal
the nearly 400 million work force or              protection under the labour laws be a
should labour laws have universal                 criterion for this?       As already pointed
applicability? It is in this context that         out, legal applicability may not be a
the distinction that we usually make              sole      or     satisfactory      cri terion,
in our country between the organised              considering        that    la ws   li ke   the
sector    and    unorganised      sector          Minimum Wages Act, the Equal


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Rem uneration          Act,     the    Contract           the Equal Remuneration Act, 1976
Labour Act and so on apply to workers                     also do not have any employment
in   both   the        organised       and    the         limit. Therefore, even if a minimum
unor ganised           sector;        even    the         employment limit is prescribed for
Industrial Disputes Act applies to large                  demarcating the organised sector, it is
sectors     of    ‘unorganised’          labou r.         not as though the Industrial Disputes
Likewise,        the    investment       in    an         Act, the Minimum Wages Act or the
establishment may not always be the                       Equal Remuneration Act will not apply
relevant criterion because investment                     to those establishments where the
is, in a manner of speaking, the                          employment limit is less than the
function of the technology and the                        minimum prescribed. The need for
processes involved in the operation of                    universality of labour laws, therefore,
that establishment.           Keeping all these           appears to have a lot to commend
in view it would appear that perhaps                      itself. The Indian Labour Code 1994
the safest approach, in the context of                    (draft) prepared by the National
coverage under labour laws, would be                      Labour Law Association has accepted
to define the organised sector as                         the need for this kind of universal
consisting of establishments which                        applicability.   But the Commission
have a minimum employment limit (A                        agrees with the study group that this
more      detailed       analysis       of    the         is perhaps too ambitious or too
characteristics of the unorganised                        impractical an approach now and
sector and employees covered in it can                    would therefore, like to fix a certain
be seen in the ensuing Chapter on the                     minimum      employment     limit   fo r
Unorganised Sector).                                      coverage under the organised sector.



6.12   A look at the various labour                       6.13   What then should this limit be?
laws particularly Central Labour Laws                     A study of the employment limits
show that not all labour laws have any                    prescribed currently in various labour
employment limit for coverage.                The         laws shows that the pattern is not
Industrial Disputes Act 1947 has no                       uniform. It ranges from covering
such limit excepting for section 3 and                    establishments employing 5 persons
Chapters VA or Chapter VB of the Act.                     as in the Motor Transport Workers Act
The Minimum Wages Act, 1948 and                           and Inter-state Migrant Workers Act to


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10, 20 or 100 as in the Factories Act,            requirements necessary for coping
B u ilding and other Construction                 with many laws. They thus fall easy
Workers Act, Payment of Bonus Act,                prey to the ‘Inspector Raj’. It has also
Contract Labour (Regulation and                   been urged that if these ‘smaller’
Abolition) Act, Industrial Employment             establishments i.e. those employing
(Standing Orders Act) and so on. The              less than 50 persons, were to be
study group that we had appointed                 covered by a set of self-contained,
has not been unanimous in defining a              simple      legal        provisions           which
threshold.    Some members held the               are    easily      understood            by      the
view that establishments having 20 or
                                                  managements              and    are      easy     to
more employees (ie., both workers
                                                  implement, then the entrepreneurs
and others) should be included in the
                                                  will be encouraged to expand their
‘organised’ secto r. Some others
                                                  current small establishments by taking
preferred the employment limit to be
                                                  more hands and still keeping their
50, there were also members who
                                                  employment strength below 50; this, it
considered even 20 a little too high
                                                  is argued, will help generate further
and wanted the limit to be fixed at 10.
                                                  employment in this sector, which, even
                                                  now, is both the main source of
6.14    Many Small-Scale Industries               employment and the generator of
Associations have told us that the
                                                  ski lls.   These     ar e       fairly    weighty
limit must be 50 and more. The
                                                  reasons.         The           study        group
argument that has been used in
                                                  has        recommended               that        the
favour of this is that an establishment
                                                  establishments           employing          50    or
of a smaller size can in no manner of
                                                  more persons (not merely workers)
speaking be described as ‘organised’;
                                                  must be governed by the general law
they do not have any well-conceived
                                                  while the smal ler establishments
production    plan,   any    access   to
                                                  should have a self-contained set of
institutional credit, the necessary
                                                  provisions that will be applicable to
economic size to look after all the
multifarious responsibilities relating to         them.      The   group         was       howeve r,

production, finance, accounts, human              unanimous        that          every      worke r,
resource management, law and so on.               irrespectiv e       of    the      employment
Their small size itself makes them                size of the establishment, must be
vulnerable, as they do not have the               assured minimum social security and
wherewithal to meet the diverse                   protection.


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6.15    We feel that by raising the              their    protection      or    benefits   of
cut-off limit to 50 employees, a large           provisions for safety and security. Nor
majority of establishments and a very            does it want to add to the problems of
high percentage of workers will be               small entrepreneurs with unbearable
kept outside the ambit of the main               financial burdens that affect the
law. However, the study group was of             viability of their enterprises or compel
the     view      that   the    smal ler         them     to   work       under      irksome
establishments and their workers                 conditions that make complicated
would also benefit from the simple               demands on them.              Balancing both
and adequate provisions which were               these factors, the Commission feels
being proposed to protect the interest           that a limit of 19 workers should be
of the workers satisfactorily under a            accepted as the socially defensible
separate law for such establishments.            mean.



6.16    Thus,     whatever     be   the
                                                 6.18     If Labour Laws are essentially
employment limit, there are certain
                                                 meant to protect the interests of the
provisions like maternity benefit, child
                                                 weaker party, and to pr ovide a
care,       workmen’s    compensation,
                                                 machinery for healt hy industrial
medical benefits and other elements
                                                 relations, the question arises as to
of social security and safety which
                                                 whether there should be any salary
must be applicable to all workers,
                                                 limit above which the protection of
irrespective of the employment size of
                                                 the labour laws will not be available.
that establishment, or the nature of its
                                                 There are of course salary limits
activity.
                                                 prescribed in the existing labour laws,
                                                 as for example in the Payment of
6.17        The Commission has given             Bonus Act, the Employees Provident
considerable thought to the number of            Fund and Miscellaneous Provisions
employees that should be fixed as the            Act, the Employees State Insurance
threshold point for the organised                Act, Payment of Wages Act and so on;
sector. It does not want any decision            the Industrial Disputes Act also has a
on this question to lead to a situation          salary    l imit   for        coverage    of
in which workers who are already                 supervisory personnel. The Study
enjoying the protection of laws forfeit          Group has recommended that no


                                           319
salary limit be prescribed for coverage          much higher than what an average
of workers under the labour laws, and            managerial person receives, and are
that the demar cation should be                  clothed with authority that in some
functional rather than based on                  matters is much higher than that
remuneration.    The Study Group was             enjoyed b y ordinary managerial
aware that there has been a history of           personnel, and yet are treated as
wage limits being prescribed in laws             workmen.       The Commission has, in a
like EPF Act, ESI Act, Payment of                succeeding         paragraph,        made
Bonus Act etc.; but even so the Study            recommendations          regarding     the
Group recommended that the criterion             desirabi li ty of a separate legal
for coverage should be functional                provision that will offer reasonable
rather than based on wage.                       protection to employees who do not
                                                 come within the purview of the term
                                                 ‘workmen        ‘and     are    general ly
6.19     The   Commission    carefu l ly         categorized as working in managerial
considered the view of the study                 or administrative or supervisory
group.    It also took into account the          capacities or in sales promotion work
evidence it received at various centre           and     also     such    categories     of
not only from employers but other                employees as are outside the purview
interest groups like consumers etc. to           of the present laws as a consequence
the effect that some of the relatively           of judicial pronouncements l i ke
better    paid   off   categories    of          teachers, artistic personnel, etc. The
employees who are presently deemed               logic behind such recommendations
as     workmen   often   misuse     the          has been explained in the relevant
protective umbrella of such Acts like            paragraphs. As has been pointed out
the Industrial Disputes Act which are            earlier the relatively better off section
available to them in total disregard of          of present day employees categorised
the interest of the employer, and                as workmen like Airlines Pilots, etc.
those of the organisation to which               do not merely carry out instructions
they belong, the consumer and the                from superior authority but are also
community as a whole. Illustrations              required and empowered to take
frequently cited in this regard were             various kinds of on the spot decisions
those of Airlines Pilots, and the like           in various situations and particularly
who receive remunerations that are               in    exigencies.      Their   fu nctions,


                                           320
therefore,     cannot     merely         be          underlying premise that the Supreme
categorized as those of ordinary                     Court laid down in its judgment on
workmen; in fact, they belong to the                 the validity of reservations for the
executive     realm,    and     there    is,         “creamy layer ” in the categories
therefore, a case for excluding such                 otherwise qualifying for reservation.
people from the provisions of the law
designed for ordinary workmen. The
                                                     6.20    The next point that will have to
Commission is also of the view that
                                                     be considered is whether supervisory
such categories of employees are quite
                                                     employees should or should not be
capable of negotiating terms of
                                                     clubbed with workers for purpose of
employment on their own and do not
                                                     coverage. The ID Act, as it now
need protection beyond a limited
                                                     stands, excludes all supervisory
extent by legal means.        It, therefore,
                                                     personnel drawing wages in excess of
recommends that Government may lay
                                                     Rs. 1600 p.m. This wage limit is so
down a list of such highly paid jobs                 low in the present context that no
which are present ly deemed as                       argument is necessary to establish
workmen category as being outside                    the need to do away with this limit.
the purview of the laws relating to                  The more basic point in the case of
workmen and included in the proposed                 supervisory personnel is whether they
law   for    the   protection      of   non          ought to be treated as part of the
workmen. Another alternative is that                 workforce      or    they     should    be
the Government fix a cutoff limit of                 consider ed    to     be    part   of   the
remuneration which is substantially                  management.         It is, in this context,
high enough, in the present context,                 necessary to note that the Industrial
such as Rs. 25,000/- p.m. beyond                     Disputes Act distinguishes between
which employees will not be treated as               employees      doing       work    of   an
ordinary “workmen ”. In case the                     administrative or managerial nature
Government deems it appropriate to                   and those doing work merely of a
lay down a wage or salary criterion as               supervisory nature, for whom alone a
a cutoff provision, it may also have the             salary limit is fixed.     The Commission
enabling powers to review it from time               is of the view that it would be logical
to time under delegated legislation. In              to keep all the supervisory personnel,
making such a recommendation the                     irrespective of their wage/salary,
Commission has also kept in mind the                 outside the rank of worker and keep


                                               321
them out of the purview of the labour                excluded      from    the     category      of
laws meant for workers. As has been                  workmen and others not treated as
recommended             in   the    previous         workmen or excluded                from the
paragraph,       al l   such   supervisory           category of workmen as has been
category of employees should be                      proposed in the paragraph preceding
clubbed along with the category of                   the previous one. We propose that
persons who discharge managerial                     instead of having separate laws, it
and administrative functions. The                    may be advantageous to incorporate
Commission would also recommend                      al l   the   provisions        relating     to
that such a modified definition of                   employment relations, wages, social
worker could be adopted in all the                   security,     safe ty        and    working
labour laws. We expect managements                   conditions etc., into a single law, with
to take care of the interests of                     separate      parts     in     r espect     of
supervisory staff as they will now be                establishments employing less than
part of the managerial fraternity.                   20 persons.



6.21     The Commission agrees with                  6.22 The            Commission            also
the study group and the large volume                 considered the question whether,
of opinion that the existing set of                  apart from laws for the protection of
labour    laws      should     be    broadly         workers, there should be a separate
grouped into four or five groups of                  legislation for giving protection to
laws pertaining to (i) industrial                    managerial employees as well.               It
relations, (i i) wages, (ii i) social                wants to point out that in 1978 the
security, (iv) safety and (v) welfare                Government had introduced a Bill on
and working conditions and so on.                    the subject in the Parliament.          It can
The Commission is of the view that                   also be seen that some kind of
the coverage as well as the definition               protection     is    available     to    such
of the term ‘worker’ should be the                   employees       in    the      Shops      and
same in all groups of laws, subject to               Establishments Acts of certain States
the stipulation that social security                 where there is a provision for an
benefits must be available to all                    appeal to a speci fied authority,
employees including administrative,                  usual ly an official of the labour
managerial, supervisory and others                   department,         against     orders     of


                                               322
discharge, dismissal or removal from                        6.23   As we have stated earlier,
service of an employee who may not                          while embarking on our task of
be a worker under the Industrial                            rationalisation of existing labour laws,
Disputes Act.               Opinion on this                 one of the important aspects that we

question was divided in the Study                           have had to bear in mind is that in the
                                                            field of labour, we have not only
Group.     So       is    the     case     in   the
                                                            central laws, i.e., laws enacted by
Commission.         It was pointed out that
                                                            Parliament, but also laws enacted by
incorporating such a provision, is likely
                                                            State legislatures which include State
to create some dissension in an
                                                            level amendments to Central laws.
environment              which    current ly     is
                                                            This is so, because the Constitution of
claimed to be based on trust and
                                                            India has included labour and related
confidence as far as such employees
                                                            matters in the concurrent list. The
are concerned.           As against this it was             Commission does not consider it
pointed out that such employees do                          necessary or desirable to change this.
not have any legal remedy against                           Howsoever carefully and compre-
unfair removal from service, excepting                      hensively a consolidated law of the
by   way       of   a     legal    sui t   which,           type envisaged by us is drafted and
experience would show, is not a very                        enacted, it is likely that individual
satisfactory method of redressal,                           states may feel the need for making
particularly when it is clear that the                      changes and/or additions to suit their
best that such a person can expect                          local conditions, and this should be
from a civil court is compensation                          permitted within the provisions of the

after a very long drawn out procedure.                      Constitution, under which the State
                                                            wi l l have to move the Central
Keeping all these issues in view, the
                                                            Government for getting Presidential
Commission agrees with the Study
                                                            assent to such changes.
Group that it is necessary to provide a
minimum level of protection to such
employees           too,     against        unfair          6.24   The enforcement of specific
dismissals or removals. This has to be                      laws is either the responsibility of the
through adjudication by labour court                        Central Government or of the State
or Labour Relations Commission or                           Government concerned or of both.
arbitration.                                                This is determined on the basis of the


                                                      323
definition of the term ‘appropriate              Commission feels that there is no
government’ that occurs in various               need for different definitions of the
labour laws. While for all state level           term ‘appropriate government’, and
legislations,      the     ‘appropriat e         considers that there must be a single
government’ is the concerned State               definition of the term, applicable to all
Government, the position varies in               labour laws. It therefore recommends
respect of Central laws. Some Central            that the Central Government should
laws like the Mines Act, 1952 have the           be the ‘appropriate government’ in
Central Government as the sole                   respect      of     Central     government
authority in respect of that law; there          establishments,         railways,       posts,
are Central laws like Factories Act,             telecommunications, major ports,
Plantations Labour Act and so on,                lighthouses,         Food       Corporation
where the authority is exclusively that          of   India,        Central     Warehousing
of the State Government where the                Corporation,        banks      (other    than
factory or plantation is located; in             Cooperative         banks),         insurance,
between, we have Central laws like               financial institutions, mines, stock
Industrial Disputes Act, Payment of              exchanges, shipping, mints, security
Bonus Act, and so on, where both the             printing      presses,        air    transport
Central   and     State    Governments           industry, petroleum industry, atomic
exercise jurisdiction depending on the           energ y, space, br oadcasting and
definition of the term ‘appropriate              television, defence establishments,
government’ in that enactment. The               Cantonment Boards, Central social
question which is the ‘appropriate               security institutions and institutions
government’ in a given case has come             such as those belonging to CSIR,
up for judicial determination in a large         ICAR, ICMR, NCERT and in respect of
number of cases under diffe rent                 industrial     disputes       between     the
enactments including the recent                  contractor and the Contract Labour
judgment dated 30.08.2001 of the                 engaged       in     these      enterprises/
Supreme Court of India in the Steel              establishments. In respect of all
Authority of India and Others Vs                 others,       the     concerned          State
National Union of Waterfront Workers             Government/Union Territory adminis-
and Others (Civil Appeal Nos. 6009-              trations should be the appropriate
6010/2001), relating to the Contract             government. In case of dispute, the
Labour    (R&A)     Act,   1970.   The           matter will be determined by the


                                           324
National Labour Relations Commission               Employment (Standing Orders) Act,
that we want to be set up.                         1946. Mention must also be made of
                                                   the   Sales   Promotion     Employees
                                                   (Conditions of Service) Act 1976 and
6.25   We had earlier indicated that in
                                                   other    speci fic   Acts    governing
our attempt to rationalise labour laws,
                                                   industrial relations in particular trades
we could, with advantage, group the
                                                   or employments. There are state level
existing    labour    laws    into   well-
                                                   legislations too on the subject, the
recognised functional groups. While
                                                   more important of which are the
the ultimate object must be to
                                                   Bombay Industrial Relations Act 1946,
incorporate all such provisions in a
                                                   Maharashtra Recognition of Trade
comprehensive code, as has been
                                                   Unions and Prevention of Unfair
done by the National Labour Law
                                                   Labour Practices Act, UP Industrial
Association, covering al l workers
                                                   Disputes Act, MP Industrial Relations
including those under Central and
                                                   Act, etc. Besides, there are state level
State Governments, we consider that
                                                   amendments to the central laws on
such a codification may have to be
                                                   the subject. We recommend that the
done in stages and what we have
                                                   pr ovisions of al l these laws be
proposed is, hopefully, the first step.
                                                   judiciously consolidated into a single
What are the laws that should be
                                                   law called the Labour Management
included in each functional group will
                                                   Relations Law or the Law on Labour
be indicated by us, as we deal with
                                                   Management Relations. We do not
each of these groups.
                                                   favour separate laws, at least as far
                                                   as labour-management relations are
Employment Relations                               concerned, for specific groups of
                                                   persons such as sales promotion
                                                   employees or others. All of them will
6.26   We     begin   wi th   what    are          be governed by the same law as will
perhaps the most important laws                    be applicable to the entire corpus of
relating to industrial relations. The              workers; we have already stated
basic central laws relating to the                 elsewhere that we cannot ask for
subject are currently the Industrial               consolidation of laws and separate
Disputes Act 1947, the Trade Unions                laws for separate employments at the
Act    1926    and     the    Industrial           same time; however, we would carve


                                             325
out a section of these workers who               went to hear evidence, we were told
are employed in establishments with              about the plight and importance of
an employment size of 19 and below,              small-scale industries.   We were told,
for a different kind of dispensation. In         and statistics were cited in support,
view of our approach, we recommend               that (i) small-scale industries provide
the repeal of the Sales Promotion                more employment (18.5 million) than
Employees (Conditions of Service)                large-scale industries: (i i) their
Act, 1976 and other specific Acts                contribution to the GDP is around 7%
governing industrial relations in                against 10% of the large-scale
particular trades or employments and             manufacturing sector (iii) their share
also specific laws governing wage                in export earnings is of considerable
fixation   in   particular   trades   or         importance to the economy; (iv)
employments, in the light of what we             large-scale closure of these units
recommend later in respect of the law            would lead to a frightening increase
on wages. The general law on                     in unemployment, and consequent
industrial relations and wages will              increase in misery and possible
apply to them.                                   starvation for many lakhs of workers
                                                 and their families, as was seen in
                                                 Delhi when lakhs of small-scale units
6.27   There is a strong volume of               had to be closed down as a result of
opinion that holds that all industrial           the Supreme Court’s ruling about
establishments, irrespective of their            pol lution; (v) the financial, and
size or nature of operations, should             administrative burden imposed on
be under the same law, and that                  them by subjecting them to the same
there is no need to exempt any                   laws as those that may be necessary
establishment from the uniform law.              in the case of big industries cripple
There are some members of the                    their economic viability; (vi) the
Commission who hold the same view.               vulnerability caused by their small
We have, therefore, given much                   siz e, distance from the gaze of
thought and full weight to this view.            publicity and lack of clout exposed
But there are a number of factors that           them to harassment and extortions by
we have to balance while coming                  inspectors;    (vii)   these   genuine
to a conclusion, and making a                    difficulties have to be taken into
recommendation. Everywhere we                    account and provided for if small-


                                           326
scale industries are to play their role                  provisions pertaining to securing
in the economy and employment                            safety, health and welfare of the
generation, and (viii) this can be done                  workers, hours of work, leave ,
only by bringing them under a                            payment of wages, payment of bonus,
separate law that takes into account                     compensation in case of lay off,
the size of the operation, investment,                   retrenchment and closure, resolution
etc. of these enterprises.                               of individual and collective disputes of
                                                         workers, etc. The law suggested by us
                                                         also has provisions pertaining to
6.28    The Commission finds that
                                                         social security. We are of the view
these are very weighty and real
                                                         that a composite law will not only
considerations. We would, therefore,
                                                         protect the interests of the workers in
recommend the enactment of a
                                                         these enterprises but will make it
special law for small-scale units. Two
                                                         easier for the small enterprises to
important questions remain: one,
                                                         comply with the same.
waht    is   the        cut-off   point     fo r
employment in this law, in other
words, what is the size of the units                     6.29    The second question relates to
that will be entitled to be considered                   the protection and welfare of these
small, and therefore, eligible to be in                  workers employed in smal l-scale
the    regime      of     this    law.    After          industries (SSI). They too are entitled
considering     al l      aspects    of    the           to protection and welfare. The size of
question, and the suggestions that                       the    enterprise   or   establishment
were discussed in the Study Group                        cannot be a reason to leave workers
and the Commission itself, we came to                    unprotected,     and     without   even
the conclusion that the reasonable                       elementary social security, especially
threshold limit will be 19 workers. Any                  when      we    are      recommending
establishment with workers above that                    measures to ensure protection and
number cannot be regarded as small.                      welfare to workers in the unorganised
We are, therefore, recommending the                      sector, where some workers are self-
threshold limit of 19 workers.             The           employed or are working in units with
composite law suggested by us for                        less than 5 workers. We have ,
small enterprises has provisions for                     therefore, ensured that the law we
registration of establishments, and                      propose assures protection and


                                                   327
welfare to workers in the SSI.       It is         6.31   We now begin by indicating
not    only    the   management        of          certain broad approaches we are
establishments in the SSI that need                adopting in drafting the Law on
protection and viability, but also the             Labour Management Relations for

workers working in them.                           establishment s    wi th   a   workers’
                                                   complement of 20 and more.

6.30   While our attempt will be to
make the law simple to understand
                                                   6.32    Firstly, the Commission would
and easy to implement and enforce,
                                                   prefer the gender neutral expression
our intention in having a separate
                                                   ‘worker’ instead of the currently used
dispensation for establishments with a
                                                   word ‘workman’ that we find in the
workers’ complement of 19 and below
                                                   Industrial Disputes Act and some
(and this is again stated in detail in
                                                   other Acts.
para 6.106 below) is to make self-
contained provisions for such small
establ ishments in respect of all                  6.33   Secondly, the law will apply
matters       such   as    employment              uniformly to all such establishments,
relations, wages, social security and              irrespective of the nature of activities
the like; this will, hopefully, meet the           carried on in these establishments;
demands, particularly from the smal-l              and, where such establishments
scale industry sector, as well as shops            have, within a specified local area,
and commercial establishments and                  branches, the employment limit will
similar sized institutions like hospitals,         be in respect of all the branches also.
educational establishments, charitable             Thus where a municipal ity runs
organisations and the like, for not                hospitals, dispensaries and schools at
being burdened with the ‘arduous’                  various centres within its jurisdiction,
provisions of laws like the Industrial             if the worker complement of all the
Disputes Act 1947 and Industrial                   branches adds up to 20 or more, this
Employment (Standing Orders) Act                   law will apply, even though individual
1946 which in their view are designed              units like a dispensary or a primary
only for large sized industrial and                school may have less than 20
commercial establishments.                         workmen.


                                             328
6.34    Thirdly, we hold that the                settlements entered into bilaterally
workers in these establishments must             and those entered in conciliation must
be enabled to organise themselves                go, and a settlement entered into with
into trade unions of their choice. We            a recognised negotiating agent must
are of the view that employment                  be binding on all workers.
relations are best regulated, not by
provisions of law, but on the basis of
                                                 6.35     Fourthly, we consider that
agreed procedures and systems that
                                                 provisions must be made in the law
the managements and unions are able
                                                 for determining negotiating agents,
to arrive at, on the basis of what is
                                                 particularly on behalf of workers; it is
commonly described as ‘collective
                                                 equally necessary to recognise that
bargaining’    or    negotiations .   We
                                                 collective bargaining or negotiations
recognise that today the extent of
                                                 could be at different levels, say at the
unionisation is low and even this low
                                                 establishment level, at the corporate
level is being eroded, and that it is
                                                 level, at the industry level, at the
time that this trend was reversed and
                                                 regional level, at the national level
collective negotiations encouraged.
                                                 and so on.
Such a step will also, in its wake,
reduce, if not altogether avoid, state
intervention    in    employer-worker            6.36     Fifthly, the law must provide
relations.      Where,        howeve r,          for    authorities    to   identify   the
agreements      and      understanding           negotiating agent, to adjudicate
between the two parties is not                   disputes and so on, and these must
possible, there, recourse to the                 be provided in the shape of labour
assistance of a third party should as            courts      and      labour    relations
far as possible be through arbitration           commissions at the state, central and
or where adjudication is the preferred           national levels.
mode, through labour courts and
labour relations commissions of the
type we propose later in this regard,            6.37     Sixthly, having considered the
and not Governmental intervention.               view that rigidities in labour laws are
The Commission also considers that               what is standing in the way of
the present distinction in law, on the           acquiring     competi tiveness        and
extent of the binding nature of                  attracting foreign investment, and

                                           329
the equally forcefully articulated view              rationalising and simpli fying the
that    labour     costs   are      only   a         existing labour laws is in the area of
comparative smal l percentage of                     simple common definitions of terms
overall costs and the reasons for the                that are in constant use; such terms
present situation have to be sought in               include      ‘worker ’,     ‘wages’      and
other areas as wel l, areas like                     ‘establishment ’.         Negatively,      by
infrastructural facilities, management               avoiding use of terms like ‘industry’
skills and the like (we have referred to             which     has    been      the    source    of
these    factors     in    mor e     detai l         considerable l itigation, one can
elsewhere); the Commission is of the                 strengthen the simplification process.
view that changes in labour laws are                 By making the law applicable to
only one of the issues involved, and                 establishments employing 20 or more
that these have to be visualised and                 workers, irrespective of the nature of
effected in a broader perspective of                 the     activity      in      which        the
infrastructural      facil ities,    social          establishment is engaged, we have
security, and Government policies.                   avoided the need to define ‘industry’
We, therefore, suggest that these                    (The Commission did in this context
changes be accompanied by a well                     examine whether domestic service
defined social security packet that will             should be included in the coverage
benefit all workers, be they in the                  under labour laws. After examining all
‘organised’ or ‘unorganised’ sector                  aspects of the question, it has come
and should also cover those in the                   to the conclusion that they are better
administrative, managerial and other                 covered under the proposed type of
categories which have been excluded                  umbrella legislation, particularly in
from the purview of the term worker.                 regard to wages, hours of work,
In evolving such a social security                   working conditions, safety and social
system, it is necessary to provide for               security.)
both protective and promotional
measures, the latter being particularly
relevant for the workers in the                      6.39      Po s i t i ve l y, w e w i ll define
unorganised sector.                                  ‘worker’ unambiguously by excluding
                                                     from the definition; all employees
6.38    One of the most important                    who       ar e     doing         supervisor y,
steps that one needs to take in                      administrative        and        managerial


                                               330
functions, by whatever designations               Disputes Act 1947 may stand, “Go
they may be called and also excluding             slow” and “work to rule” are forms of
those specifically notified or otherwise          action which must be regarded as
held as not coming within the purview             misconduct. Standing Orders and
of the term. Likewise, we define                  Provisions relating to unfair labour
establishment as a place or places                practices already include them and
where some activity is carried on with            provide for action both in the case of
the help and cooperation of workers.              “go slow” and “work to rule”.



6.40     As regards ‘wages’, we are               6.42     Item number 5 of part II of the
clear, keeping in view the endless                Fi fth   Schedule     of the   I.D. Act
li tigation that takes place as to                prescribes that “ to stage, encourage
whether a particular allowance or                 or instigate such forms of coercive
payment is part of wages for purposes
                                                  actions such as wilful go slow,
of deduction for provident fund or ESI
                                                  squatting on the premises after
and calculation for purposes of bonus             working hours or gherao of any of the
or gratuity, that it is desirable to              member of the managerial or the
define    two     terms,   ‘wages’   and          other staff” shall be an unfair labour
‘remuneration’, the former to include             practice which is prohibited and also
only   basic    wages      and   dearness         made punishable under the Industrial
allowance and no other; all other                 Disputes Act.        Similarly, the Model
payments including other allowances               Standing Orders framed under the
as well as overtime payment together              Industrial Employment (Standing
with wages as defined above will be               Orders) Central Rules made for the
‘remuneration’.                                   coal      mines       prescribes      that
                                                  “malingering or slowing down the
6.41     The Commission also discussed            work” shall be misconduct.         We feel
the question whether any distinction              that both these provisions may be
should be made between ‘strike’ and               added as forms of misconduct in the
‘work stoppage’, as is the position in            Model Standing Orders formulated for
the Bombay Industrial Relations Act               establishments other than coalmines
1946 and decided that the existing                as     well;   and   they   may    attract
definition of ‘strike’ in the Industrial          appropriate penalties.


                                            331
6.43    The Commission also carefully              more than one section of the society.
considered the recommendation of                   One is the basic right of the workers
the Study Group that the term                      to strike. Another is the spectrum of
‘retrenchment ’ should be defined                  society (spectrum of gr oups in
precisely to cover only termination of             society) that will be affected by such
employment arising out of reduction                a strike. Let us begin by saying that
of     surplus     workers       in     an         we bel ieve that workers have a
establishment, such surplus having                 fundamental right to strike. Having
arisen out of one or more of several               said that, we will have to examine the
reasons. The present definition has,               many forms that a strike can take, the
after the Sundaramani case judgment,               many motivations that can prompt
proliferated to cover virtually every              action in the course of the strike, and
kind of termination of employment.                 the consequences that they will have
The Commission agrees with the                     on different sections on which the
Study Group that this must be                      effects of their actions fall.
recti fied. This is particularly so
because the provisions in the law for
a month’s notice, compensation based               6.45    To begin with, a strike is the
on years of service already put in by              assertion of the fundamental right of
the worker, and provisions of sections             the worker to withdraw co-operation
25G and 25H, are, in the opinion of                from what he perceives as injustice
the Commission, inconsistent with any              being done to him. This is achieved
position other than that retrenchment              by stoppage of work. Secondly, the
can be only in respect of surplus                  employer feels the impact when he
workers or in case of redundancy.                  sees that the strike has led to a
                                                   stoppage of production, and this has
                                                   adversely affected his economic
6.44   With due deference to the                   interests. Thirdly, the worker feels
opinion of the Study Group, the                    that continued stoppage of production
Commission wi ll     urge    a   deeper            and continued adverse effect on the
consideration of the arguments that                economic interests of the employer
have    been     advanced,   and       the         will compel him to reconsider his
apprehensions      that   have        been         attitude, and seek a compromise with
expressed. On a matter that affects                the    striking   workers,       so   that

                                             332
production may resume. Fourthly,                      the confronting parties. One has only
obstinacy or what is seen as obstinacy                to look at what happens when doctors
by one or other of the parties may                    or nurses or hospital employees, or
lead to feelings of indignation and the               people engaged in transport services,
desire to seek revenge on the other.                  generation     and   transmission     of
Fifthly, this may lead to lock-out, the               electricity, water supply and sanitation
use of hired goondas or blacklegs,                    in urban areas go on strike. They
agents provocateurs etc. on the part of               create situations which threaten the
the management, or anti-social forces,                lives and normal and essential needs
and     gherao      or    destruction      of         and activities of the vast majority that
machinery or other acts of violence on                are not involved in any way; people
the part of the workers. There are                    who are in no way responsible for
many who profit by driving the dispute                what those involved are fighting for;
into the realm of law and order, and                  and act against society which has a
using the strong arm of the State to                  right to protect itself, and for that
convert     industrial      disputes     into         purpose, intervenes to prevent forms
matters for the police or the law and                 of conflict that inflict vicarious and
order enforcement machinery. This is                  undeserved suffering or hardship on
not to the advantage of the workers,                  those who are not guilty. One’s liberty
and perhaps to that of the industry as                has to be seen in the light of the
well.                                                 equal right that everyone else has to
                                                      demand and enjoy liberty. Social
                                                      intervention thus becomes justified
6.46     There are some industries or                 and necessary to protect the interests
services in which where the effects of                of all concerned.
industrial action, or confrontation,
cannot, by the very nature of the
activity   remain        confined   to   the          6.47    The first National Commission,
employers and emplo yees in the                       and earlier the Royal Commission,
service or industry. They impinge on                  also referred to this dilemma     that is
or spread into the lives of the vast                  created by strikes in certain ‘essential’
majority of people in society who are                 industries and services. The earlier
not     involved,    who     are    neither           National Commission has outlined the
employers nor employees, who are not                  pros and cons of social intervention,


                                                333
and the forms that such intervention             time of previous sett lements or
can take. We do not want to reiterate            chosen afresh by mutual consent, if
these here. But we have referred                 there is no panel of arbitrators
elsewhere (in earlier paragraphs) to             provided for in previous agreements).
the increasing need to deal with this            Both parties to the dispute will be
si tuation    and    the      increasing         bound by the award of the arbitrators.
indignation and resistance that one              This will secure redress of grievances
sees in the counter-reaction of the              and at the same time protect the
majority that is subjected to vicarious          ordinary      citizen       from    the
suffering.    We    have   also   draw n         consequences,         sometimes    fatal
attention elsewhere to the need for              consequences - of the disruption of
workers’ unions to ensure that they              essential services.
do not lose public sympathy.


                                                 6.49    Some argue that such an
6.48    We, therefore, recommend that            arrangement is tantamount to taking
in the case of social ly essential               away the right to strike.    We do not
services like water supply, medical              accept this contention, because we
services, sanitation, electricity and            are providing for a strike ballot, and
transport, when there is a dispute               recognition of majority support to the
between employers and employees in               proposal for strike as the equivalent of
an enterprise, and when the dispute is           a successful strike. A strike is meant
not     settled     through       mutual         to project the demands of the workers
negotiations, there may be a strike              as also their determination to resort
ballot as in other enterprises, and if           to direct action or stoppage of work.
the strike ballot shows that 51% of              Another element can be to materially
workers are in favour of a strike, it            affect the profits of the management,
should be taken that the strike has              and to show that the management’s
taken place, and the dispute must                profits depend on the workers - at
forthwith be referred to compulsory              least, the workers as well. In the case
arbitration (by arbitrators from the             of essential services, it becomes
panel    of   the   Labour     Relations         impossible to non-cooperate with the
Commission (LRC), or arbitrators                 management without hurting the vast
agreed to by both sides either at the            majority of people as well. It is only

                                           334
this    element      therefore        that     is         a state of affairs does exist. The
tempered         through        compulsory                Commission took note of the Bill
arbitration.     Time      l imits    can     be          intr oduced        for    making     some
prescribed to ensure that compulsory                      amendments to the Trade Unions Act
arbitration is also speedy and time-                      1926, which has now been passed by
bound arbitration, and as in the case                     both Houses of Parliament. This is a
of     other   processes        of        dispute         minimal bit of legislation in the
sett lement,     application         of    these          context of all that is needed, and
awards too, may have retrospective                        ignores the most important aspect of
effect to protect the interests of the                    the whole question, namely, the
workers.       We   should      also        draw          recognition of the bar gaining or
attention here to the fact that we are                    negotiating agent. The Act, namely,
recommending            in      subsequent                Trade Unions (Amendment) Act, 2001
paragraphs the withdrawal of the                          (Act No.31 of 2001) does make
Essential Services Maintenance Acts.                      pr ovisions        that   would    reduce
                                                          multiplicity of unions, reduce the
                                                          number of ‘outsiders’ in the executive
6.50     As    a l ready     indicated,       we          of a trade union, prohibit a Union or
consider it desirable that the law of                     State minister from being a member
employment relations is so structured                     of the executive of a trade union, etc;
as to enable workers to organise                          even so, it would have been desirable
themselves and to play a useful and                       if the Act had also provided for a
constructive role in the growth and                       ceiling on the total number of trade
development of the establishment in                       unions of which an ‘outsider’ can be a
which they work. The charge that                          member        of     executive     bodies.
there are inter-union and intra-union                     Amendments made in Section 4
rivalries that not only weaken the                        recently appear to disentitle workers
trade union movement but also hurt                        in the unorganised sector from
the establishment s in which the                          getting their trade unions registered.
workers are employed, and so on,                          To overcome this difficulty, a specific
cannot be brushed aside, but at the                       provision may be made to enable
same time we cannot ignore the fact                       workers in the unorganised sector to
that trade unions also function in a                      form trade unions, and get them
political and social milieu where such                    registered even where an employer-


                                                    335
employee relationship does not exist            collective bargaining, and not for
or is difficult to establish; and the           purposes of membership of trade
proviso     stipulating      10%     of         unions, and therefore, does not call
membership for registration of trade            for any provision in the law. The
unions will not apply in their case.            Commission also took note of the low
One hopes that if the new system of             level of unionisation as also the fact
law were to progressively diminish the          that all the benefits which accrue to
role of the state in employment                 workers as a result of collective
relations matters, the number of                bargaining do not distinguish between
outsiders wil l also progressively              those who are members of Trade
diminish.                                       Unions and those who are not. Since
                                                all workers in the establishment
                                                receive the benefits that come from
6.51   A wider and deeper look at the           settlements,      we feel that    it is
Trade Unions Act 1926, than what has            desirable to introduce in law a
been attempted in Act No.31 of 2001             provision according to which :-
mentioned above, will demand a
closer look at a large number of                “A worker who is not a member of
important issues. In the course of              any Trade Union will have to pay an
evidence, a question was raised                 amount equal to the subscription rate
whether the right to registration as            of the negotiating agent or the
Trade Unions should be confined to              highest rate of subscription of a union
organisations of workers only or                out of the negotiating college. The
employer’s organisations should also            amounts collected on this account
enjoy this right as provided in the             may be credited to a statutory welfare
existing provisions. After considering          fund. Wherever there is no statutory
various issues involved we have come            workers’ welfare fund these will be
to the conclusion that the present              credited to a welfare fund set up by
system of eligibility for registration          the employer for the welfare of the
may continue.      The question whether         workers of the establishment with the
some sections of workers like security          approval     of     the   appropriate
and watch and ward staff, confidential          Government under clause (ff) of sub
staff and so on be exempted will be             section (2) of section 7 of Payment of
relevant    only    for   purposes   of         Wages Act, 1936”.


                                          336
6.52    Flowing from the above, the               6.54   We also recommend that all
Commission considers it necessary to              federations of trade unions as also
provide for resolution of what may be             Central organisations of trade unions
termed ‘trade union disputes’ which               and federations should be covered
will include any dispute between:                 within the definition of trade union
                                                  and be subject to the same discipline
(a)    one trade union and another;               as a primary trade union. The same
                                                  dispensation will apply to employers’
(b)    one group of members and
                                                  organisations     and      employees’
       another group of members of
                                                  organisations.
       the union;

(c)    one or more members of the
                                                  6.55    We do not favour craft based
       union and the union; and
                                                  or caste based organisations of
(d)    one or more workers who are                workers or employees or employers.
       not members of the union and               The law must specifically provide
       the union.                                 that any trade union or employers’
                                                  organisation       or      employees’
6.53    A ny   such   dispute,    which
                                                  organisation     which   restricts   its
currently goes under the appellation
                                                  membership on the basis of craft or
of inter-union or intra-union rivalries,
                                                  caste wi ll not be al lowed to be
should be capable of being resolved by
                                                  registered, and an unr egistere d
reference of the dispute to the labour
                                                  organisation shall not be entitled to
court having jurisdiction, either suo
                                                  any privileges, immunities, and rights.
moto or by one or both the disputing
parties or by the state in case it
considers it expedient to do so. The              6.56   Subject to what we have stated
present unsatisfactory practice of                in the preceding paragraphs, we
dealing with such issues, namely,                 consider that the other provisions of
filing a suit and so on, should be done           the Trade Unions Act 1926 including
away with. Similar provisions may be              the provision to set up a separate
incorporated in law, in regard to                 political fund may be appropriately
employees      organisations     and   if         included in the proposed integrated
necessary, in respect of employers’               law. We would recommend that such
organisations as well.                            provisions be allowed to continue.


                                            337
However, care must be taken to                    of    stakes.       B ut   the     efforts       to
ensure that the general funds of trade            create and maintain this aware-
unions are not used for political                 ness must be sincere and earnest and
purposes.                                         not     merely      cynical      lip    service.
                                                  Secondly, as far as the workers are
                                                  concerned,          success      in    bi lateral
6.57   We now come to the crucial                 negotiations will depend on the
question of recognition of bargaining             strength of the union that speaks and
agent or negotiating agent.                       acts on behalf of the workers -
                                                  the more fu lly the organisation
                                                  represents the workers the more
6.58   In      view   of   the   crucial          effective will it be in bargaining or
importance of this question, we would             negotiating on behalf of the workers.
like to make a few observations and,              As     the    saying       goes,       uni ty     is
perhaps, an appeal, before we make                strength       or     str ength         l ies    in
our recommendation.                               unity,       and     fragmentation              will
                                                  fritter away the potential strength of
                                                  the     workers.       Our    Trade        Union
6.59   Firstly, we strongly believe in            movement today is fragmented, on
the role that bilateral interaction,              many basis, - but perhaps most
dialogue and negotiations can play in             of    al l   on pol itical lo yal ties or
promoting      harmonious     industrial          considerations.            Whatever             the
relations. In a sense, bilateralism is            basis, the effect of fragmentation
the recognition of the stake that                 is the same, and that is to undermine
workers and the management have in                the unity of the working class and
the viabil ity and success of the                 weaken it. Everyone talks of the
undertaking.     In fact their stakes are         value of unity, the imperative need of
higher than those of anyone else. It              unity today, but in practice, hardly
is, therefore, necessary that both                anyone seems to be willing to give up
recognise and respect each other’s                separate identities. This perpetuation
stakes.        We have already said               of fragmentation is weakening the
elsewhere that the awareness of                   workers. Friends of the working class,
mutual dependence can create an                   therefore, have to be careful not to
active realisation of the commonalty              recommend any process or system


                                            338
that aggravates or strengthens the                eliminate the need to prescribe a
tendency        for       fragmentation.          separate process for the recognition
Fragmentation not only weakens the                of a negotiating agent. The registered
working class but also lets the                   union will automatically be the sole
adversary derive advantages from the              negotiating      agent.        Strikes       by
divisions on the other side. Closing of           unregistered unions should be treated
ranks, therefore, is the need of the              as illegal and should att ract the
working class, but for various reasons            penalties of an illegal strike.      It was
it seems that the incentives fo r                 also pointed out that there were many
consolidation are still weak.     One of          countries in the world including
the ways to strengthen the incentives             industrially advanced countries where
can lie in the field of registration and
                                                  there is no provision for registration.
recognition, where the criteria for
eligibility can be upgraded or at least           6.62    A second suggestion was that
proportionately upgraded.         We are          either of the two kinds of bodies may
also aware that any such criteria                 be registered, - one on the basis of
should    not   militate    against   the         the present law with a prescribed
fundamental rights of association.                minimum       support     of    10%,        and
We, therefore, looked for methods of              another kind which may be put on a
upgrading the criteria.
                                                  panel of unions that would be
                                                  considered       for     r ecognition        as
6.60     E very one admi ts that the
                                                  negotiating agent. The minimum
existing multiplicity of unions weakens
                                                  support to be empanelled may be
the Trade Union movement; but
                                                  prescribed as 25% of workers in an
everyone becomes wary when specific
                                                  establishment.     If this suggestion is
steps    are    suggested    to   reduce
                                                  approved there can be at most three
multiplicity.
                                                  unions, or in an unlikely case four
6.61     One novel suggestion that                unions, not more, that fulfil the legal
came from a distinguished trade union             criteria for recognition.
leader was that the minimum support
required for registration itself should
be raised to 51% of the workers and               6.63   This      would      result     in     a
verification of support should be on              reduction in the number of unions
the basis of check off.      This would           contending to be the negotiating


                                            339
agent. From among those in the                  suggestion that the negotiating agent
panel anyone who has 66% may be                 should be selected for recognition on
recognised as the single negotiating            the basis of the check off system,
agent. If no one has 66%, one                   with 66% entitling the union to be
alternative is to have a run off                accepted as the single negotiating
between the two unions at the top of            agent, and if no union has 66%
the table, in which all workers in the          support, then unions that have the
undertaking may participate, and                support of more than 25% should be
whichever secures 66% may be                    given proportionate representation on
accepted as a single negotiating                the college.
agent.


                                                6.67   The question of the method
6.64     The third suggestion was that          that should be used to identify the
wherever no union secures 66%,                  bargaining agent has been the subject
there should be a negotiating agency            of discussion and debate for many
or negotiating college which has                decades now. The first National
proportionate representation for the            Commission on Labour examined this
unions in the panel.                            question and listed the arguments in
                                                favour and against the two systems
                                                that have been proposed, the check
6.65     The Commission feels that all          off system, and the secret ballot.
these proposals need to be discussed            Many committees like the Ramanujam
further with the trade unions, and              Committee,     the    Sanat     Mehta
perhaps managements, and they                   Committee,      the    Shanti    Patel
should be persuaded to accept any               Committee      and    the    Industrial
method that reduces or eliminates               Relations Bill of 1978 have made
mul tipl icity,   which    is   another         recommendations on this question.
description       of   a    state    of         We have carefully studied all the
fragmentation.                                  arguments that have been advanced
                                                on either side (and the qualifications
                                                that have been proposed for the
6.66     I f either of these is not             negotiating agent). We do not want to
ac ceptable, we fal l back on the               recount all the arguments.


                                          340
6.68     To put the arguments briefly,                 the administrative cost of a secret
those who support the secret ballot                    ballot, especially when it has to be
urge; (1) that the system of secret                    held in a multi-unit undertaking goes
ballot is what is used to elect a                      to     crores    of     rupees     and      the
representative to the legislature or                   deployment of a formidable number
Parliament; (2) that it is a system that               of polling officers; (vi) that this raises
assures a democratic choice; (3) that                  the question of the source from which
the secrecy prescribed in it provides                  the money to defray the expenditure
protection      to   the    worke r,     from          on the secret ballot should come,
harassment by the management or                        whether i t should be from the
other unions; and (4) that there is no                 management or workers or the
better method to verify support. Those                 Government. The management is
who support the check off system                       reluctant, and some times, unable to
argue: (i) that the check off or                       find such a large sum of money; the
authorization        to    deduct       union          Trade Union does not have the
subscriptions from wages clearly                       resources, and the Government too is
shows the respective strength of                       unwilling to find the money from the
unions; (ii) that unlike the secret                    exchequer; (vii) that the campaign for
ballot    which      only     shows       the          a      secret    ballot        disturbs     the
preference at the moment, the check                    atmosphere,            generates      intense
off system shows the continued                         feelings of rivalry and acrimony and
support for the unions over a long                     sometimes        violent       interludes    in
enough period of time; (iii) that since                establishments which adversely affect
the negotiating agent has to represent                 and disrupt the tenor and volume of
workers over a period of time till the                 work done etc.; and (viii) that it takes
next      negotiations        fal l,      due          many days for the aftermath of the
membership of the union is a far                       campaign to settle down.
better and more reliable index than a
secret ballot (which is more like a
referendum); (iv) that the check off                   6.69     The     Commission         carefu l ly
system        promotes       unionisation;             considered       the     advantages         and
(v)    that    the   check    off      system          disadvantages of the relevant options.
does     not    involve      any       special         In dealing with this issue, we had to
expenditure for verification, whereas                  keep     in     view     our    belief    that


                                                 341
col lective negotiations require a                 undertakings operating in a number
strong trade union movement which,                 of states. It has been shown that the
in its turn, demands an increasing                 expenses run into crores of rupees.
degree of unionisation. Any formula                For instance, we are informed that in
which militates against increasing                 the case of the Food Corporation of
unionisation should, therefore, ab                 India (F.C.I.) the identification of the
initio be avoided. Secret ballot as a              negotiating agent through secret
method of identifying the negotiating              ballot amongst 50,500 employees
agent raises the following questions: -            undertaken during 2002 involved
should the electorate for choosing the             an expenditure of more than 50 lakh
negotiating agent be the entire corpus             rupees, and the deployment of 3,000
of workers in the establishment/                   returning officers and polling staff.
industry/region or should it be limited
only to members of registered trade
                                                   6.71      A check off system has the
unions? If it is to be the latter, then in
                                                   advantage          of    ascertaining       the
a situation where the total unionised
                                                   relative strengths of trade unions
strength is less than 50% of the work
                                                   based on continuing loyalty reflected
force, and this is the average scenario
                                                   by     the      regular       payment        of
in our country, then a minority
                                                   union subscription, even i f such
will be negotiating for the entire
                                                   subscriptions are deducted from the
establishment/industry/region;
                                                   wages      as      permitted     under      the
on the other hand, if the entire
                                                   Payment of Wages Act, 1936. Also,
workforce were to participate, then it
                                                   the check off system by and large
is argued this may weaken the urge
                                                   av oids      the     incidence      of   dual
or inducement for non-unionised
                                                   membership under which, for a
workers to become members of one
                                                   variety of reasons, a worker may
or other of the trade unions.
                                                   become member of more than one
                                                   union.     Given        the   low   level    of
6.70       Also, secret ballot even on a           unionisation in India, neither the
restricted basis is logistically and               check off system nor the secret ballot
financial ly a di fficult process in               confined to members of registered
industries like railways, banks, post              unions is li kely to throw up a
offices,     coalmines     and     other           negotiating agent which commands


                                             342
the support of the majority of workers,                  Labour Relations Commission to
excepting        in      industries          and         determine the method that should be
establishments where the degree of                       adopted in a particular instance.
unionisation      is     very       high.    The
argument advanced against the check
                                                         6.73     It is needless to stress that for
off system is that it exposes the
                                                         the     above       proposals         to     be
loyalty of the worker, and this may
                                                         implemented, the check off system in
make him vulnerable to victimisation
                                                         an establishment employing 300 or
by the management or persecution by
                                                         more     workers        must     be        made
members of other unions. We feel that
                                                         compulsory        for   members        of    al l
this argument does not have much
                                                         registered trade unions; each of them
force today, when conscientisation and
                                                         will have to indicate to the employer
legal rights have more or less done
                                                         the name of the trade union of which
away with the fear that workers had in
                                                         he/she is a member and the worker
the early days of trade unionism in the
                                                         will also have to issue a written
country.        Today, i t is commonly
                                                         authorisation to the employer to
accepted – even by employers that
                                                         deduct his/her subscription from his/
workers have the freedom to join
                                                         her wages and pass it on to his/her
Trade Unions of their choice. There
                                                         trade union.
may    be       exceptional          cases    of
victimisation and vendetta. But they
are exceptions, and not the vogue.                       6.74    Though the check off system
                                                         will be preferred in the case of
                                                         establishments employing less than
6.72   We have given consideration to                    300     persons     too,   the   mode        of
all these arguments and come to the                      identifying the negotiating agent in
conclusion that the check off system                     these     establishments         may         be
should be the general pattern, and                       determined by the LRCs. Any union in
where ver       ther e        is     legi timate         such     smal ler       enterprises         may
apprehension           that        the   system          approach the LRCs for conducting a
may not achieve the purpose of                           secret ballot instead of employing the
veri fication    or      may        create   the         check off system, and the LRC will
possibility of victimisation, it should                  decide the issue after consulting the
be open to unions to petition the                        other Trade Unions operating in the


                                                   343
establishment. We are recommending                      negotiations, manpower adjustments,
a slightly different dispensation for                   change in shifts etc. should be
units employing less than 300 as we                     concluded      at     the     establishment
feel that it is in such units that                      level so as to maximize the efficient
the possibility of victimisation has to                 functioning         of      the     individual
be provided against.                                    establishment s          based       on     the
                                                        situations     that      obtain      in    such
                                                        establishments.
6.75 The          Commission               also
considered the question of the powers
of the single negotiating agent or                      6.76   We would also recommend that
the     negotiating      col lege     at   the          recognition once granted, should be
establishment       level       and   at   the          valid for a period of four years, to be
industry or region levels. It may so                    co-terminus     with        the    period    of
happen that at the level of individual                  settlement. No claim by any other
establishments, there may be trade                      trade union/federation/cent re f o r
unions which have much greater                          recognition should be entertained till
following than is the case at the                       at least 4 years have elapsed from the
industry or regional negotiating level                  date of earlier recogni tion. The
where a single federation/cent re                       individual workers’ authorisation for
di fferent from the establishment                       check off should also be co-terminus
level     union     or      a     composi t e           with the tenure of recognition of the
negotiating college may hold sway.                      negotiating agent or college.
The Commission has taken note of the
practice of industry level negotiations
on interest issues, which obtain in                     6.77   All establishments employing
several industries and would like the                   20 or more workers should have
practice to continue. However, it                       standing orders or regulations which
would also like that as far as possible,                shal l cover al l areas of working
negotiations and decision making on                     conditions,     employment,               social
wages, allowances, general conditions                   security, misconduct, procedure for
including total number of hours of                      disciplinary        action,       suspension,
work, leave, holidays, social security,                 payment of suspension allowance,
safe ty   and     health,       productivity            facilities and protection to be provided


                                                  344
to workers against sexual harassment,           challengeable before labour courts by
age of retirement and so on. The                an appeal by either party.               Any
Commission agrees with the opinion of           amendment to the Standing Orders
the Study Group that there is no need           can be asked for by either party and
to delimit the issues on which standing         agreed to by both parties or referred
orders can or need be framed.                   to the certifying authority or the
However, the Commission does not                Labour Court for determination.
find it possible to agree with the              However, no demand for amendment

recommendation of the Study Group               can be made until at least a year has
                                                elapsed. The appropriate Government
that the need for certification of the
                                                may prescribe a separate Model
standing orders b y a prescribed
                                                Standing Order for units employing
authority may be dispensed with. This
                                                less than 50 workers. We append a
is   because    the   Commission    has
                                                draft of Model Standing Orders for
brought down the threshold fo r
                                                such    smal l    establishments.        The
framing of standing orders from 50 to
                                                employer will have to append a copy
20 workers and this would mean that
                                                of Model Standing Orders or the
the number of establishments which
                                                Standing Orders, mutually agreed
need to have standing orders will
                                                upon wi th the workers, to the
increase. As long as the two parties
                                                appointment letter of every employee.
agree, all manner of things including
mul ti-skill ing,     production,   job         6.78    The      Commission       has    also
enrichment, productivity, and so on             taken note of the evidence tendered
can also be added to what we have               at various venues to the effect that
listed above. These standing orders             the present Model Standing Orders
will be prepared by the employer(s) in          only speak of punishment of four
consultation wi th the recognised               days’   suspension        and     removal/
unions/federations/centres depending            dismissal,       and    there     ar e    no
upon the coverage, and where there is           intermediate grades of penalties. The
any disagreement between the parties,           Commission does not consider this to
the disputed matter will be determined          be a satisfactory arrangement. The
by the certifying authority having              appropriate Government may also
jurisdiction, to which either of the            frame     model        standing    orders,
parties may apply. The decision of the          including the classification of acts of
certifying authority would however be           misconduct as major and minor, and


                                          345
providing for graded punishments               enquiry and further, there would be
depending on the nature and gravity            no increase in subsistence allowance
of the misconduct, and publish them            beyond 50% for the period exceeding
in the official gazette. Where an              90 days in such cases.
establishment has no standing orders,
or where draft standing orders are             6.80   Every establishment to which
sti l l to be finalised, the model             the general law of employment
standing orders shall apply.                   relations applies i.e. those with 20 or
                                               more workers, shal l establish a
6.79    Any worker who, pending                Grievance      Redressal         Commi ttee
completion of domestic enquiry, is             consisting     of       equal    number    of
placed under suspension, by orders in          workers’ and employers’ represen-
writing giving reasons for his/her             tatives, which shall not be larger than
suspension and the charges framed              ten members or smaller than two
against him, should be entitled to             members        depending           on     the
50% of his wages as subsistence                employment size of the establish-
al lowance, and i f the period of              ment, as may be prescribed. One
suspension exceeds 90 days for no              member of the committee may be
fault of the worker, then for the              designated         as     Chairman        and
remaining period of suspension, he/            another as Vice Chairman and a
she shall be entitled to subsistence           system may be established to see that
allowance calculated at 75% of the             one    of    the    two     is    from    the
wages, so however the total period of          management, and the other from
suspension shall not, in any case,             among employees’ representatives.
exceed one year. If as a result of             The Grievance Redressal Committee
continued absence of the worker at             shal l be the body to which al l
the domestic enquiry or if the enquiry         grievances of a worker in respect of
and disciplinary action cannot be              his employment, including his non-
completed    in   time   for   reasons         employment will be re ferred fo r
attributable wholly to the worker’s            decision within a given timeframe.
default or intransigence, the employer         Where the worker is not satisfied with
will be free to conduct the enquiry            the decision of the committee, he
ex-parte and complete the disciplinary         shall be free to seek arbitration of the
proceedings based on such ex-parte             dispute by an arbi trato r, to be


                                         346
selected from a panel of arbitrators to                and in the best interests of the
be     maintained     in     the    manner             undertaking.    It is no doubt true that
prescribed, or seek adjudication of the                consequent on the current situation
dispute by the labour court. The                       of   global isation    and     increasing
decision of the labour court or                        competitiveness and upgradation of
arbitrator shall be final.                             technology, all economic activities
                                                       become subject to market pressures,
6.81     One of the contentious issues                 compelling employers to do different
in the existing Industrial Disputes Act,               levels of adjustments, including the
1947 relates to Section 9A, more                       size of the labour force, if he wishes
particularly items 10 and 11 of the                    to continue in business. We are
Fourth    Schedule     which       r ead   as          informed that some of the court
follows: -                                             decisions include even VRS (Voluntary
                                                       Retirement Schemes) as actions that
“10. Rationalisation, standardisation or               would attract the provisions of section
improvement of plant or technique                      9A. We have carefully considered this
which is likely to lead to retrenchment                issue. We have earlier recommended
of workmen;                                            that the definition of the term
                                                       ‘retrenchment’ should cover only
11. Any increase or reduction (other                   reduction      of   surplus    labour   or
than casual) in the number of persons                  redundancy. We also notice that while
employed or to be employed in any                      the first 9 entries in the Fourth
occupation or process or department                    S chedule relate to condi tions of
or     shift   not     occasioned          by          service, items 10 and 11, in a manner,
circumstances        ov er    which        the         deal with the very employment of
employer has no control.”                              persons and in the present situation,
                                                       the size of employment is a matter
6.82     It is being strongly urged on                 which   can be best           decided   by
behalf of employers, and not without                   the employer himsel f or hersel f
justification, that this effectively                   keeping in view various attendant
prevents the employer from adjusting                   circumstances. If an entrepreneur
the strength of his labour force from                  starting an activity afresh has the
time to time to meet exigencies                        right to decide on the number of
caused by genuine economic reasons                     persons he/she will employ in various


                                                 347
sectors of his activity, there is no            workers so that they are equipped
reason why this option cannot be                and ready for different kinds of jobs
exercised by an existing employer in            that restructuring may entail. In fact,
respect of his continuing activity. A           there is continuous need for this kind
prudent employer will, no doubt, not            of training, and only by equipping
act capriciously, and in the pattern of         themselves with the new skills that
industrial relations we envisage, he            technological     changes     demand
will be ill advised not to consult the          can    workers   adapt     themselves
negotiating agent on such matters               successfully, if for nothing else, at
even as he might consult financial              least for retaining their jobs. We are
institutions, technical experts and             told   that   there   is    sometimes
others; but, yet, the decision will be          reluctance among workers to undergo
his. No doubt, the resulting action             such training. This is unfortunate,
may lead to a dispute needing                   and we expect the trade unions to use
arbitration or adjudication but the             their influence and good offices to
main point is that there need be no             encourage the workers to utilise such
statutory obligation for the employer           opportunities, which ultimately are
to give prior notice, in regard to item         not merely in the interests of the
11 of the Fourth Schedule for the               undertaking but of themselves. We
purpose of increase in the workforce,           would suggest that refusal to go for
as is the position now under Section            such training, which must be at the
9A. We would recommend accordingly.             employers’ cost and in the employer’s
Further the Commission is of the view           time, may be included as an act of
that notice of change, issued by an             misconduct under the standing orders
employer as per provisions of Section           if such r e fusal is without val i d
9A, should not operate as a stay                reasons.
under Section 33 though such a
decision of the management will be              6.84    Chapter V B of the Industrial
justiciable under Section 33 A. Section         Disputes Act 1947 (ID Act) has of late
33 may be amended accordingly.                  attracted heavy criticism. It has been
                                                argued by the employers that this
6.83   Arising out of the above is the          provision in the law which was
need for the employer to foresee and            enacted during the Emergency must
arrange for appropriate training to the         go, as most other manifestations of


                                          348
the Emergency have gone. It has also             the induction of new technology that
been contended that the law originally           often reduces the number of workers
applied to establishments with 300               necessary for processes; and two, the
and more workers which later was                 economic costs that are at least
brought down to 100 or more workers              partial    determinants               of        global
through an amendment in 1982. The                competitiveness. They also argue that
announcement of the Union Finance                upgradation          of     technology              is
Minister in his Budget Speech of 2001            imperative for competitiveness in
that the ID Act will be amended to see           quality and cost. Trade Unions feel
that only establishments with 1000 or            that the total elimination of the
more workers would be covered by                 existing      law    that       requir es         the
chapter V B, has given further fillip to         Government ’s             permission               fo r
the demand to scrap V B.                         retrenchment or downsizing will lead
                                                 to sudden and indiscriminate laying
6.85   We are well aware that this is a          off or retrenchment of work ers,
question that has aroused intense                resulting in sudden loss of jobs and
feel ings and apprehensions, and                 incomes, uncertainty and possible
touched off a running public debate.             starvation for themselves and their
We wil l therefore approach this                 families. No society can be impervious
question from the point of view of               to   the       consequences                 (moral,
society as a whole, not merely of one            economic and social consequences) of
section or the othe r, but of the                pushing people into poverty and
interests of the totality of society, of         starvation.    Both these are important
which sectoral interests are integral            considerations,           and    it        is    their
parts. If one goes by the declared or            importance that has confronted us
ostensible interests, managements                with a dilemma.           The answer lies in
feel that they cannot achieve or                 finding a fine balance, because
maintain competitiveness if they are to          industrial efficiency is essential for
treat the number of workers employed             social progress and the protection and
in their undertakings as fixed. They             generation      of        employment              also
argue that there are two reasons that            imperative for social justice and social
compel them to look upon the strength            progress. Industry must be helped to
of the workforce in their undertakings           protect its viability and competitive
as variable: one, the consequences of            efficiency, and workers must be


                                           349
helped to protect employment and                 close is given effect to: underwrite
incomes.     The best course would               faci lities for medical tr eatment,
have been to seek solutions through              education of children, etc. and
bi lateral    consultations         and          provide for a third party or judicial
agreement. (Those who want the                   review of the decision, without
state to step aside or fade out of the           affecting the right of the management
picture should not be reluctant to               to decide what economic efficiency
accept bi lateral ism). B ut leaving             demands.
matters of this nature solely to
bilateralism at this juncture may lead           6.87     One of the members of the
to wide-spread industrial unrest,                Commission strongly argued that
strikes and lay offs and closures of             Chapter V-B should apply to al l
industrial establishments.     This will         industrial undertakings employing 20
nei ther help industry to acquire                or more workers; that consequently
competitiveness nor help workers to              the need to secure prior permission
protect their incomes, nor help the              should be deemed necessary for all
society as a whole to move towards               establishments employing 20           or
economic growth.     The situation may           more workers. The Commission gave
have been materially different and               due consideration to this argument.
easie r, i f we had a viable and                 It shares the anxiety to protect
adequate system of social security               workers from the effects of arbitrary
including unemployment allowances                closures.     But the Commission felt
and transitional facilities. But we do           that    the    effect    of    the   new
not have these, and we cannot set                circumstances on industry cannot be
them up in a day.                                ignored or wished away. In the new
                                                 circumstances of global competition,
6.86    The alternative then is to pay           it     may    not   be   possible    fo r
adequate     compensation,        offe r         some     enterprises      to    continue
outsourced    jobs    to     retrenched          and meet the economic conse-
workers or their cooperatives, if any            quences of competition. In such
enterprise decides to close down give            cases, one cannot compel non-viable
workers or Trade Unions a chance to              undertakings to continue to bear the
take up the management of the                    financial burden that has to be borne
enterprise before the decision to                to keep the concern going. There is


                                           350
no justice or benefit in compelling a                be to al low closure, provide fo r
loss-making undertaking to bear                      adequate compensation to workers,
burdens that it cannot carry, to sink                and in the event of an appeal, leave it
further.   They should, therefore, have              to the Labour Relations Commission
the option to close down. It would be                to find ways of redressal :- through
good if there can be a prior scrutiny of             arbitration or adjudication. Such an
the grounds on which the closure is                  enquiry can also assess whether any
sought, and the reasons for the loss of              exercise in retrenchment during the
viability. It is precisely for this reason           immediate past, say 18 months or two
that the provision for prior permission              years      was   undertaken     by     the
was incorporated in the Law. But                     enterprise to scale down to the
experience         has    shown        that          threshold limit of 300 to exercise the
governments do not want to give                      option for closure without obtaining
quick decisions, even though they                    permission.
know that delay in taking decisions
only adds to the burdens that such                   6.88       The Commission has carefully
enterprises are f o rced to carry.                   considered the views of the Study
Applications to permit closure are kept              Group and all the evidence and other
pending     for    months     and    years.          inputs received in this regard. It
Industries are kept waiting. Losses                  agrees with the recommendation of
and liabilities are allowed to mount.                the Study Group that prior permission
Stalemates        continue.   Sometimes              is   not    necessary   in   respect    of
managements try to create alibis by                  lay off and r etrenchment in an
manoeuvering disruption in the supply                establishment of any employment
of electricity, or seek some such                    siz e. Workers wil l, howeve r, be
subterfuges to close the enterprise                  entitled to two month’s notice or
and disappear from the scene without                 notice pay in lieu of notice, in case of
paying compensation, dues, etc. to                   retrenchment.      We also feel that the
workers. Such situations lead not only               rate of retrenchment compensation
to de facto closure, but also the loss               should be higher for retrenchment in
of compensation and dues.           In these         a running organisation than in an
circumstances the Commission came                    organisation which is being closed.
to the conclusion that the best, and                 Again, we are of the view that the
more honest and equitable course will                scale of compensation may vary for


                                               351
sick units and profit making units                          plantations, as is now the case, but to
even in cases of retrenchment. It                           all establishments. We, therefore,
would however, recommend that in                            recommend that the provisions of
the case of establishments employing                        Chapter VB pertaining to permission
300 or more workers where lay off                           for closure should be made applicable
exceeds a period of one month,                              to all establishments to protect the
such     establishment s              should    be          interests of workers in establishments
required to obtain post facto approval                      which are not covered at present by
of the appr opriate Government.                             this provision if they are employing
Closure of establishments, either                           300 or more workers. It is, however,
because of sickness or for other                            not   able   to    agree    with    the
reasons like pollution and so on, is                        recommendation of the Study Group
quite wide-spread, and the present                          that the provision of Chapter V A
era       of       economic             re forms,           should apply to all establishments. It
globalisation, competitiveness and so                       would rather recommend that this
on has also aggravated the situation.                       chapter applies to all establishments
The Finance Minister in his 2001                            with 20 or more workers as it is
Budget         speech          had     indicated            inclined to recommend a separate set
the cut off limit in chapter V B at                         of legal provisions co vering al l
1000 workers. It has been reported                          aspects of lay off, retrenchment and
that the Union Cabinet has also                             closure for all kinds of establishments
accorded        i ts        approval     to    this         with less than 20 workers. Necessary
proposi tion           in      principle.      The          changes in chapter VA in regard to
Commission                  recognises         that         retrenchment      and   closure     wil l
such a limit would leave out most                           have to be made accordingly. Every
employees;         and        feels    that    this         employer will have to ensure, before
limit    is    too      high,     and       would,          a   worker   is   retrenched   or   the
therefore, recommend restoration of                         establishment is closed, irrespective
the     original       limit     of    300.    The          of the employment size of the
Commission is also inclined to agree                        establishment, that all dues to the
with the recommendation of the Study                        workers, be it arrears of wages
Group that provisions in regard to                          earned, compensation amount to be
chapter V B must be made applicable                         paid for retrenchment or closure as
not only to factories, mines and                            indicated in the next paragraph, or


                                                      352
any other amount due to the worker,                  to give similar notice as prescribed
are first settled as a precondition to               for bigger establishments before
retrenchment       or   closur e.    These           retrenching the workers or closing
provisions wil l not bar industrial                  down. We are suggesting a higher
disputes being raised against a lay off              rate of compensation to be payable by
or retrenchment or closure. Having                   industries which are running in profit
regard to the national debate on this                or are not so sick as to necessitate
issue and the principles outlined                    their being wound up, since such
above, the Commission would like to                  industries have the capacity to pay
recommend the compensation per                       reasonably good compensation, as
completed year of service at the rate                can be seen from VRS packages.
of 30 days on account of closure in
case of sick industry which has                      6.89     We        understand      that    the
continuously run into losses for the                 Employees             Pr ovident          Fund
last 3 financial years or has filed an               Organisation is proposing to bring
application for bankruptcy or winding                about a scheme by which employees
u p, and other non-profit making                     would be provided some benefit if
bodies like charitable institutions etc.             they are rendered unemployed. The
and at the rate of 45 days fo r                      Scheme is called “ Employees Multi-
retrenchment by such sick industry or                benefit Insurance Scheme”.          It would
body where retrenchment is done                      be applicable to all provident fund
with a view to becoming viable. It                   members.            Its aim is to provide
would     also     recommend         higher          benefit to emplo yees during the
retrenchment compensation at the                     period        of     non-voluntary         un-
rate of 60 days of wages and similarly               employment which may be on account
a higher rate of compensation for                    of     permanent        closure     of     the
closure at the rate of 45 days wages                 establishment and retrenchment of
for every completed year of service for              the worker. We feel that such a
profit     making          organisations.            scheme would provide some sort of a
For establishments employing less                    safety net to the workers in times of
than     100     workers   half     of   the         crisis. The Government may consider
compensation mentioned above in                      the matter favourably.
terms of number of days wages
may be prescribed. However, these                    6.90     I t can thus be seen that
establishments will also be required                 we are recommending the restoration


                                               353
of the original threshold limit for                 Government within 60 days of receipt
prior permission: increased rates of                of application, the permission will be
compensation; consultation with the                 deemed to have been granted.
representatives         of    the   workers
without giving workers a right to                   6.92    We have, at several places so
veto; judicial review by the LRC in                 far,   r e ferred      to     arbitration      or
case of dispute; and (legal provisions              adjudication for determining disputes
or     r eview    by    the    appropriate          between management and labour. We
Governments) that make it obligatory                feel arbitration is the better of the
for employers to purchase insurance                 two,    for    the         reason    that     the
cover for employees.                                procedur es         will    be    simple,     the
                                                    proceedings will not be tardy and the
6.91     Arising out of the above, we               decision will be rendered by a person
recommend that while the lay off                    in whom both parties have confidence.
compensation could be 50% of the                    We     would        like    the     system     of
wages as at present, in the case of                 arbitration to spread, and over time,
retrenchment, Chapter VA of the law                 become        the     accepted       mode      of
may be amended to provide for sixty                 determining disputes which are not
days notice for both retrenchment and               settled by the parties themselves. In
closure or pay in lieu thereof.         The         fact it would be desirable if in every
provision for permission to close down              settlement entered into between the
an establishment employing 300 or                   parties, (and we would urge that the
more workmen should be made a part                  duration of each settlement be four
of Chapter VA, and Chapter VB should                years), there is a clause providing for
be repealed.       In case of closure of            arbitration by a named arbitrator or
such      establishment         which    is         panel of arbitrators of all disputes
employing 300 or more workers, the                  arising out of interpretation and
employer will make an application for               implementation of the settlement and
permission        to    the    appr opriate         any other disputes. The law may even
Go vernment 90 days before the                      lay down that such a provision be
intended closure and also serve a                   deemed        to     be     part     of     every
copy of the same on the recognised                  settlement. By having a named person
negotiating agent. If permission is not             as an arbitrator during the currency of
granted      by        the     appropriate          a settlement, the arbitrator is able to


                                              354
familiarise himself with all aspects of            prevailing mode.    We do hope that,
the activity in the establishment and to           over time, collective bargaining and
get to know the parties better; also,              inbuilt arbitration will result in the
the fact that the person will be the               bulk of the disputes between parties
arbitrator, for better or for worse,               being settled expeditiously.   However,
during the entire period of the                    there will be at least some instances
settlement will, hopefully, make him               where adjudicatio n is preferred,
impartial and also act in the best                 where bipartite negotiations do not
interests of the establishment.                    bear fruit. We envisage a system of
                                                   labour courts, lok adalats and Labour
6.93     Arising out of the above, we              Relations    Commissions       as     the
would like to suggest that a panel of              integrated adjudicatory system in
arbitrators is maintained and updated              labour matters. The Labour Courts
by the LRC concerned, which would                  and Industrial Tribunals will stand
contain names of all those who are                 merged. This system will not only
willing and have had experience and                deal with matters arising out of
familiarity with labour management                 employment relations but also trade
relations; the panel may consist of                disputes in matters such as wages,
labour      lawyers,     trade     union           social security, safety and health,
functionaries, employers, managers,                welfare and working conditions and so
officials of the labour department,                on. While labour courts will consist of
both serving and retired, academics,               a single presiding officer, the Labour
retired judicial officers and so on.               Relations Commission at the State,
Some ground rules could also be                    Central and National level will be
framed      in   consul tation      wi t h         preferably   bodies    that    have    as
representatives of employers and                   presiding officers, a sitting or retired
workers, and these could include                   judge of the High Court or a person
procedures for selecting an agreed                 who is eligible for appointment as a
person from the panel, the cost of                 judge of the High Court. Both at the
arbitration and so on.                             state and central level, the Labour
                                                   Relations Commission will consist of
6.94     We recognise that, in the area            representatives       of   employers,
of determination of industrial disputes            workers, economists, leading figures
in our country, adjudication is still the          from the trade union movement,


                                             355
labour   or publ ic      administration,           The Conci liation Officer should,
management,       etc.     as    members,          however, be clothed with sufficient
besides members from the All India                 authority to enforce attendance at
Labour      Judicial      Service.    The          the proceedings of conciliation. The
composition of the National Labour                 conciliation officers will carry out
Relations Commission may also be on                such directions as may be given by
similar lines with the presiding officer           the Labour Relation Commissions in
being a sitting or retired judge of the            addition to performing their duties as
Supreme Court or a person who is                   prescribed        under    the     la w.   We
eligible for appointment of a judge of             particularly commend some of the
the Supreme Court. Until such a                    features contained in the Indian
service is constituted, the qualification          Labour Code (Draft) 1994 namely,
for appointment to labour courts and               setting      up     Labour         Relations
Labour Relations Commissions will                  Commission at the State, Central and
have to be prescribed, and we are                  National level, the National level
inclined to recommend the adoption                 Commission hearing appeals against
of   what      the       First    National         the decisions of the State and Central
Commission, the Industrial Relations               Commissions, which in their turn
Bill 1978 and the Indian Labour Code               would hear appeals against orders of
(Draft) 1994 have suggested in                     labour courts; clothing the National
respect of the qualifications and                  Labour Relations Commission with the
powers/functions of labour courts and              power of the Supreme Court of India
Labour     Relations       Commissions.            as envisaged in Article 32(3) of the
However, we are of the opinion that                Constitution of India and so on.
the machinery for conciliation which
the First Commission wanted to be                  6.95       Instead of waiting for the
included as a part of the LRC, needs               publication of the awards in the
to be kept separate and vested in                  official    gaze tte,     awards     of    the
the executive, namely, the appropriate             competent court including the labour
Government concerned. We are also                  courts and the Labour Relations
of the opinion that inspectors should              Commissions should be deemed to
not be appointed as Conciliation                   have come into effect unless an
Officers as that may undermine their               appeal      is   preferred       within    the
efficiency as Conciliation Officers.               prescribed period. The Labour Courts


                                             356
shall be empowered to enforce their                    self-contained labour adjudication
own awards as well as the awards of                    system      wil l     ensure      that      the
Labour Relations Commissions. They                     adjudicatory         process         including
should also be empowered to grant                      appellate processes will be speeded
interim relief in cases of extreme                     up and will also have a greater degree
hardship.   During      the    course     of           of consistency.
evidence, the Commission had come
across the widely held view that                       6.96    While       on     the   subject     of
Government       often        delays     the           resolution      of    disputes       between
publication of the awards for long                     employers           and      workers,       we
periods. The dispensation that we                      recommend that all matters pertaining
have suggested would obviate such                      to     individual         workers,     be    it
shortcomings      and     ensure        fu l l         termination of employment or transfer
autonomy to the judicial process. We                   or any other mater be determined by
also consider it desirable to make                     recourse to the grievance redressal
officials of labour departments at the                 commi ttee,          concil l iation        and
Centre and the State who are of and                    arbitration/adjudication by the labour
above the rank of Deputy Labour                        court. These disputes need not be
Commissioners/Regional               Labour            elevated to the rank of ‘industrial
Commissioners      with        ten     years           disputes’ which would then take the
experience in the labour department                    form of collective disputes.           In this
and a degree in law, eligible for being                view, section 2A of the Industrial
appointed as presiding officers of                     Disputes Act 1947 may be amended
labour courts.   The Central and State                 to enable such disputes to be treated
Labour    Commissions          should     be           as individual disputes and defined
declared as set up under article 323-B                 accordingly in the law. Individual
of the Constitution. This will do away                 disputes may be taken up by the
with recourse to High Courts as is                     affected workers themselves or by
currently the practice. Empowering the                 TUs and the collective disputes by the
National Commission with the powers                    negotiating agent or an authorised
of the Supreme Court of India will also                representative of the negotiating
simi larly discourage parties from                     college for resolution. Both Individual
approaching the Supreme Court either                   and Collective disputes not settled
under Article 32 or Article 136. Such a                bi lateral ly may be taken up in


                                                 357
conciliation, arbitration or adjudi-              court comes to the conclusion that
cation. In our scheme of things a                 the grave charges have been proved,
union which does not have at least                then the court will not have the power
10%    membership          amongst   the          to     order   reinstatement     of    the
employees in an establishment should              delinquent worker.
have    no   locus    standi    in   that
establishment. A union which has at               6.97     As an alternate and perhaps
least 10% members amongst the                     speedier system for resolution of
employees in a unit should only have              industrial     disputes,   the        State
the right to represent individual                 Government of Punjab has been
workers in various fo ra such as                  experimenting with the system of
conciliation, arbitration or adjudication         Labour Lok Adalats, and it is claimed
and a provision in this regard may be             to have been a great success. During
made in Section 36 of the Industrial              the Commission’s visit to Chandigarh,
Disputes     Act.    The     appropriate          the representatives of the state
Government may also approach the                  Government of Punjab, namely, the
Labour Relations Commission on any                Labour Secretary and the Presiding
individual or collective dispute in any           Officer of the Industrial Tribunal
establishment. Since our emphasis                 spoke commending the role that Lok
throughout is on expeditious disposal             Adalats are playing. We were told that
of cases, al l disputes, claims or                more than 11,400 pending labour
complaints under the law on labour                cases, which constituted two third of
relations should be raised within one             the total pending cases had been
year of the occurrence of the cause of            disposed off in three rounds of Lok
action. In this context we considered             Adalats, and that this had resulted in
whether section 11A of the ID Act                 the payment of Rs. 8.55 crores to the
1947 should be retained and came to               workers. We feel that this is an
the conclusion that it should be.                 experiment worth pursuing by other
However, the law may be amended to                State Governments and the Central
the effect that where a worker has                Government. It is of course necessary
been dismissed or removed from                    to ensure that these Adalats are not
service after a proper and fair enquiry           used to ‘browbeat ’ workers into
on charges of violence, sabotage,                 accepting payments which may be
theft and/or assault, and if the labour           only a fraction of what they may be


                                            358
entitled to under the law. Perhaps a              and adjudication, we also recommend
set of do’s and dont’s can be thought             that the jurisdiction of civil courts be
of which may be binding on the Labour             banned in respect of all matters for
Lok Adalat. Can such Adalats be                   which provision is contained in the
Tripartite bodies or is it better that            relevant labour laws. The existing
they are manned by functionaries of               powers regarding consent of the other
the labour judiciary? May be, a panel             party for the appearance of legal
of advocates or persons well versed in            practitioner should remain. In the
labour laws and labour administration             case of conciliation and Lok Adalats,
may be maintained, and one or two                 appearance of the legal practitioners
such persons may be deputed to                    should not be permitted. We would
hearings of Labour Lok Adalats to                 also recommend levy of a token court
ensure ‘fair-play’. We are not in a               fee in respect of all matters coming
position to recommend the actual                  up before labour courts and labour

procedur es    that   would   be most             relations commissions. The State

suitable. This has to be found out from           Governments may also decide the

the experience that a few more states             differential rates for court fees for the

may acquire.    However, the system of            unorganised sector. The procedure
                                                  fo l lowed   in    the   labour    courts,
Lok Adalats on labour matters appears
                                                  arbitration, etc. need not mandatorily
promising, and should be pursued.
                                                  be the procedure followed by the civil
                                                  courts.
6.98    We also recommend that a
system of legal aid to workers and                6.100     It has been brought to the
trade unions from public funds be                 notice of the Commission that there is
worked out, to ensure that workers                a law in England, popularly called the
and their organisations are not unduly            ‘Whistle blowers’ law’ under which
handicapped as a resul t of their                 workers are protected from being
inability to hire legal counsels on their         dismissed or penalised for disclosing
behalf. In this context, we also                  information, which they reasonably
recommend that trade unions must be               believe           exposes         financial
helped financially by public funds in             malpractices, miscarriage of justice,
meeting the cost of arbitration.                  dangers to safety and health, risks to
                                                  environment and so on. This law, it is
6.99   While on the subject of disputes           learnt, had the support of the


                                            359
government, opposition parties, the                     the strike/lock-out. The general pro-
Confederation of British Industry and                   visions like giving of notice of not less
the Trade Union Congress. The                           than 14 days, not declaring a strike or
Commission would suggest that in                        lock-out over a dispute which is in
India too, Government may examine                       conciliation or adjudication and so on
the feasibility of enacting a law of that               will be incorporated in the law. In this
kind.                                                   context we also recommend that an
                                                        illegal strike or illegal lock-out should
6.101      While discussing the need for                attract similar penalties. A worker
retaining a separate category of                        who goes on an illegal strike should
establishments to be declared as                        loose three days wages for every day
‘public utility services’, or essential                 of illegal strike, and the management
services we had indicated that there                    must     pay     the    worker       wages
would have to be a strike ballot before                 equivalent to three days wages per
a call for strike is given in all cases or              day of the duration of an illegal lock-
industries.       Elaborating        this   we          out. The union which leads an illegal
recommend that a strike could be                        strike must be derecognised and
cal led    only     by    the   recognised              debarred        f rom     applying      fo r
negotiating agent and that too only                     registration or recognition for a
after it had conducted a strike ballot                  period of two or three years.
amongst all the workers, of whom at
least 51% support the move to strike.                   6.102 Another       area     which      the
Correspondingly, an employer will not                   existing laws do not cover but which
be allowed to declare a lock-out                        in the opinion of the Commission
except with the approval at the                         must be statutorily provided fo r
highest level of management except                      relates to workers participation in
in   cases     of    actual      or     grav e          management. The provision in section
apprehension        of    physical     threat           3 of the Industrial Disputes Act 1947
to   the    management          or    to    the         is   a   pale   version    of    what    is
establishment.           The    appropriate             contemplated in Article 43 A of the
government will have the authority to                   Constitution of India. We feel that the
prohibit a strike or lock-out by a                      time has come now to legislatively
general or special order and refer for                  provide for a scheme of workers
adjudication the issue leading to                       participation in management. An


                                                  360
earlier Bill introduced a decade back                have recommended above, all of them
on   this    suffe red     from     certain          may be suitably incorporated in the
inadequacies and generated a lot of                  consolidated law.
debate. We would recommend that a
Bill be introduced early, incorporating              6.104 We hope we have covered, in
the provisions of the earlier Bill with              the     above    paragraphs,   al l   the
such changes as proposed during the                  important issues, and we hope that if
debate on the Bill and the ideas                     al l   these    recommendations       are
unanimously accepted by the Tripartite               accepted and acted upon, we will
Committee on Workers Participation in                embark on an era of sound and
Management & Equity that submitted                   efficient       labour   management
its report in 1979.      It may be initially         cooperation, giving workers a place of
applicable    to   all    establ ishments            digni ty and responsibili ty in the
employing 300 or more persons. For                   establishment and at the same time
the smaller establishments, a non-                   providing the management with the
statutory scheme may be provided.                    necessary freedom to function. We
Since we have recommended that                       would also urge that in making the
supervisors as a category be clubbed                 above recommendations, we have
with administrative and managerial                   striven to maintain a proper balance
personnel, the demarcation is clear                  between the interests of workers and
between workers and management.                      those of the managements, all within
Furthermore,       the       system      of          the     paramount    consideration     of
recognition for the bargaining agent,                protecting and promoting the health
as also the information available under              and the growth of the establishments
the check off system will furnish                    concerned. We would therefore urge
enough data to select representatives                that these recommendations ar e
of workers at each tier of participation.            taken up as a whole, and not in a
                                                     piece meal manner that may destroy
6.103 There are a large number of                    the context of inter-relation, and the
small issues for which provision can                 holistic approach.
be found in the existing laws. The
Commission is broadly in agreement                   6.105     We would also refer to the
with such provisions and to the extent               view that in the enforcement of
they are not inconsistent with what we               labour laws, there is discrimination


                                               361
between the private sector and public             establishments. We have therefore
sector, the latter allegedly being                decided that all such establishments,
handled leniently. The provision in the           be they manufacturing units or
Criminal Procedure Code that prior                service providing units or hospitals or
permission or sanction is needed                  educational institutions or charitable
before a prosecution can be launched              institutions or shops and establish-
against the senior functionaries of               ments or cooperatives or consultancy
public sector establishments has, it is           out-fits or lawyers’ firms and the like
urged, contributed to this differential           will be governed by simple legal
treatment. The Commission feels that              provisions covering all aspects of
no such discrimination should be                  employment. Where an establishment
permitted either by law or in practice,           in its entirety is made up of branches,
as the purpose of labour laws will be             such    as    a    local   body   having
defeated by such discrimination.                  dispensaries or schools in a large
                                                  number       of   locations   within   its
6.106   In para 9 above, we indicated             jurisdiction, that will be governed by
our intention to have a separate                  this dispensation only when the
dispensation      for   establishments            combined strength of all branches is
having an employment size of 19 or                19 or below. The provisions in respect
less workers. In coming to the                    of such establishments can be in the
conclusion      that    such     ‘smal l’         form of a separate law named
establishments need a different and               Small    Enterprises       (Employment
self-contained set of provisions, we              Relations) Act or be included in the
were persuaded by the fact that in                general law as a separate chapter. A
such establishments, the managerial               draft of such a law has been
capabilities are limited, and more                attempted and is at Appendix-II to
often than not, the entrepreneur is               this chapter. As may be seen from the
himself discharging myriad functions              same, the law seeks to cover all
of   finance,     production,    sales,           aspects of employment including
personnel management and so on.                   wages, social security, safety and
Moreover, we learnt that the evil                 health and so on. A system of self-
effects of what has come to be known              certification has been introduced to
as   ‘Inspector     Raj’   are     mor e          offset the criticisms of ‘Inspector Raj’.
pronounced in the case of such small              An obligatory provision for social


                                            362
security, with contributions from the              cleaning etc. jobs in all establish-
employer and from the worker as also               ments    for     which      the      Central
a compulsory annual bonus at 8 /3 % 1
                                                   Government       is   the    appropriate
of the wages (a month’s wage) are                  Government.
also features of the law that we have
proposed. These provisions will ensure             6.108   We note that, in essence, the
that the interests of the workers are              SAIL judgment has overruled the Air
fully protected, even while lessening              India judgment, thus leading to the
burdens on the management and                      position that on the abolition of
providing them with vigilance in                   contract labour by the appropriate
exercising managerial functions.                   Government under section 10 of the
                                                   Contract Labour (Regulation and
Contract Labour                                    Abolition) Act 1970, the principal
                                                   employer is under no obligation to
6.107    We are devoting a separate                absorb the contract labour concerned
section in our chapter to the question             as his regular employees, though the
of Contract Labour, both because of its            judgment       enjoins   the      principal
size and the topical nature of the                 employer to give preference to the
problem. The Study Group was aware                 erstwhile    contract       labour    while
of the recent five - judge judgment of             recruiting fresh workers for the jobs
the Supreme Court in the case of the               in respect of which contract labour
Steel Authority of India (delivered on             system stood abolished.
30.08.2001) overruling the three-
judge judgment in the Air India                    6.109    The Commission has carefully
Statutory Corporations Case. We do                 considered the evidence tendered
not want to enter into a critique either           before it at various centres by both
of the Air India Judgment or the SAIL              employers and employees and the
Judgment.    We are also not making                speci fic recommendations of the
any comments on the decision in the                Study Group that the decision to
SAIL    judgment     in   respect       of         abolish contract labour should not be
‘appropriate government ’       or the             an executive one based on the
quashing of the December 1976                      recommendations of Contract Labour
notification abolishing contract labour            Advisory Board concerned but must
system in respect of sweeping,                     be a judicial one. It is unable to agree


                                             363
with the recommendation of the Study                understand that the Maharashtra
Group that the judicial body vested                 Government have moved to have such
with the responsibility for making                  a distinction between the core and
recommendation on abolition should                  non-core      functions.       We     would,
also   be    empower ed        to    order          therefore, recommend that contract
absorption by the principal employer                labour shall not be engaged for
of such numbers of contract labour as               core production/services activities.
considered just and reasonable. This                Howeve r,     for    sporadic       seasonal
would amount to a virtual reversal of               demand, the employer may engage
the Supreme Court judgment in the                   temporary labour for core production/
SAIL case and restoring the judgment                service activity. We are aware that
of the Air India Statutory Corporation              off-loading       perennial      non-cor e
case on the issue of absorption. The                services like canteen, watch & ward,
Commission is conscious of the fact                 cleaning, etc. to other employing
that in the fast changing economic                  agencies has to take care of three
scenario and changes in technology                  aspects – (1) there have to be
and    management,           which     are          provisions that ensure that perennial
entai led    in   meeting           current         core services are not transferred to
challenges, there cannot be a fixed                 other agencies or establishments; (2)
number of posts in any organization                 where      such     services    are    being
for all time to come. Organizations                 performed by employees on the pay
must have the flexibility to adjust the             rolls of the enterprises, no transfer to
number of their workforce based on                  other agencies should be done
economic efficiency. The industry                   wi thout     consulting,        bargaining
represen-tatives have at various                    (negotiating) agents; and (3) where
centres deposed before us that                      the transfer of such services do not
their energies are frittered away in                involve any employee who is currently
taking care of the functions which are              in service, the management will be
not core to their business and                      free to entrust the service to outside
therefore,   it   makes      them      less         agencies. The contract labour will,
competitive in the global market.                   however, be remunerated at the rate
It is essential to focus on cor e                   of a regular worker engaged in the
competitencies     if   an    enterprise            same organisation doing work of a
wants to remain competitive. We                     comparable nature or if such worker


                                              364
does not exist in the organisation, at          is to guard against such eventualities
the lowest salary of a worker in a              that we are recommending, that the
comparable grade, i.e. unskilled, semi-         principal employers should be held
skilled or skilled. The Commission              responsible for the benefits payable to
would further recommend that to                 contract labou r, as the principal
ensure that this recommendation is              employers      are      the      ul timate
not misused in any manner by the                beneficiaries from the work given on
employer, the onus and responsibility           contract.
of proof to show and ensure that the
employer is paying such contract                6.110 While     on    the     subject    of
worker the w ages of a regular                  contract labour the Commission would
employee doing comparable work or in            recommend that no worker should be
its absence that of the lowest skilled          kept continuously as a casual or
regular employee, would be on the               temporary      worker         against     a
principal employe r. The principal              permanent job for more than 2 years
employer will also ensure that the              unless he is employed on a contract
prescribed social security and other            for a specified period.
benefits are extended to the contract
worker. There is a reason that compels          Law on Wages
us to make this recommendation.      At
many of the centres we visited, we              6.111 Next only to employment,
were told during evidence, that there           wages and remuneration are the most
were cases of contractors making                important of the issues one has to
deductions from the wages of contract           contend with when dealing with
workers as their contribution towards           labour management relations. The
social security, and then absconding            reasons are obvious.      While generally
without    depositing     either   the          employers      view         wages       and
contribution realised from the workers          remuneration as an item of cost and
or their own contributions into the             hence to be kept in check even if not
accounts of the concerned social                reduced, these are the wherewithal
security system. It is obvious that             for the worker to maintain himself/
contractors should not be allowed to            herself and his/her family at least at a
perpetrate this double fraud at the             level of living that is consistent with
cost of the poor contract workers. It           human needs and human dignity.


                                          365
Directive Principles of State Policy in           mmendations made in the Judgment
the Constitution have specifically                of the Supreme Court in the Raptakos
referred to ‘living wages’ in Article 43.         Brett & Co case. We strongly believe
Article 43 is reproduced below: -                 that a reasonable wage, keeping in
                                                  view the needs of the worker and his/
“The State shall endeavour to secure,             her family, will repay itself in many
by suitable legislation or economic               ways to the employer by way of
organisation or in any other way, to              increased productivity, commitment,
all workers, agricultural, industrial or          better labour management relations
otherwise, work, a l iving wage,                  and al l in al l, a satisfied and
conditions of work, ensuring a decent             cooperative work force. Also, it is only
standard of life and full enjoyment of            that kind of wage that will set the
leisur e   and   social   and   cultural          wheels of trade and industry moving,
opportunities and, in particular, the             by putting in the hands of the worker
State shall endeavour to promote                  the money that will enable him to
cottage industry on an individual or              purchase his/her bare needs and a
cooperative basis in rural areas”.                little more. Needless to add, what we
                                                  state   here   is    applicable   to   al l
6.112 The ILO has also declared, ‘the             situations, irrespective of the size of
goal is not just creation of jobs but             the establishment or the nature of its
creation of jobs of acceptable quality’,          activity. However, before fixing the
and in the Indian context, the level of           minimum       wage    the   appropriate
wages is an index of the acceptability            Government should keep in mind the
or otherwise of the quality of the job.           capacity of the industry to pay as well
That is why the Commission is                     as the basic needs of the workers.
anxious that the minimum wage                     The attempt to find such a balance
payable to anyone in employment, in               has to be based on a national policy
whatever occupation, should be such               on wages, income and prices about
as would satisfy the needs of the                 which    we     are     making     mor e
worker and his family (consisting in              observations in later paragraphs.
all of 3 consumption units) arrived at
on the Need Based formula of the                  6.113 The Commission looked at the
15th   Indian    Labour     Conference            problem of bonus and the endless
supplemented        by    the     reco-           disputes regarding calculation of


                                            366
bonus, more particularly the prior                         from time to time. It should, in
charges. The Commission is of the                          addition,    have       a   component     of
view that in Indian social conditions,                     dearness allowance to be declared six
there is a necessity to enable the                         monthly linked to the consumer price
worker to have some ready cash to                          index and the minimum wage may be
enable him to celebrate the festival                       revised once in five years. This will be
season, with some satisfaction and                         a wage below which no one who is
pride; an ordinary worker will not be                      employed anywhere, in whatever
able   to   put     by     smal l      amounts             occupation, can be paid. Each State/
periodically from his wages for this                       Union Terri tory should have the
purpose.      In    view        of    this,   the          authority to fix minimum rates of
Commission recommends that every                           wages, which shall not be, in any
employer must pay each worker his                          event, less than the national minimum
one month’s wage, as bonus before an                       wage when announced; where a state
appropriate festival, be it Diwali or                      is large, it may, if it chooses, fix
Puja   or     Onam         or    Ramzan        or          different rates of minimum wages for
Christmas. Any demand for bonus in                         different regions in the state but no
excess of this upto a maximum of                           such wage can be less than the
20% of the wages will be subject to                        national     minimum         wage.      The
negotiation, as at present. We also                        Commission also recommends the
recommend           that        the     present            abolition of the present system of
system of two wage ceilings fo r                           notifying scheduled employments and
reckoning      entitlement            and     fo r         of fixing/revising the minimum rates
calculation    of     bonus          should   be           of   wages     periodical ly      for   each
suitably enhanced to Rs. 7,500/- and                       scheduled employment, since it feels
Rs. 3,500/- for enti tlement and                           that all workers in all employments
calculation respectively.                                  should have the benefit of a minimum
                                                           wage.
6.114 The Commission also considers
it necessary that a competent expert                       Piece Rate Wages
body be appointed to examine the
question of a national minimum wage                        6.115 In     q u it e   a   few    of    the
that the Central Government may                            employments that are covered under
notify. This minimum must be revised                       the Minimum Wages Act 1948,


                                                     367
workers are paid wages on piece rate                 6.117 In some earlier paragraphs,
basis. It so happens that apart from                 we have already stated our view that
other shortcomings, the piece rates                  e very     worker    engaged        in    any
may be fixed so low that a diligent                  employment       should      receive      the
worker, even after 8 hours of work                   minimum wage prescribed for that
may not be able to earn what would                   employment.      Every one who works
amount to the notified time rated                    for eight hours is entitled to this
wage     for   a    day.   The    existing           minimum wage. We have been asked
provisions of lay off deal with a                    whether those who are employed in
similar situation in industry where the              the relief works organized directly by
employer is unable to provide work to                the Government – or by NGOs on
the workers for part of the day or for
                                                     behalf of the Government – should
fu ll   day.   We     agree      with   the
                                                     also be paid the minimum wage. We
recommendation of the Study Group
                                                     will of course like them to receive the
that where wages are fixed purely on
                                                     minimum wage. But we have to point
piece rate basis the employer should
                                                     out that those who are employed in
pay at least 75% of the notified time
                                                     re lief works in ar eas struck by
rated wage to the piece rated worker
                                                     calamities are in a category of their
if the employer is not able to provide
                                                     own.       Due to reasons beyond their
him with work.
                                                     control,     they    have        lost    their
                                                     employment or means of livelihood.
6.116    In the case of home-based
                                                     The State wants to ensure that they
work, where apart from the main
                                                     are not reduced to starvation, and so
workers, other members of his/her
family also contribute significantly to              organises works in return for which

the production,        the    piece     rate         they offer food or some monetary
earnings of all of them put together                 compensation.       The alternative is to
adds up to only a fraction of notified               provide free doles to all those who
time rated minimum wage for a single                 are affected by the calamity. The
worker. We, therefore, recommend                     arguments against doles are well
that fixation of piece rate wages must               known.      Even the recipient generally
be so done as to enable a diligent                   prefers to receive a remuneration
worker to earn after 8 hours work                    rather than a dole. There is therefore,
what would be the time rated daily                   a case to distinguish between regular
rate.                                                wage     employment         or    food     or


                                               368
remuneration in return for some token                       of B onus Act 1965. In addi tion
work for which opportunities are                            to this, the Commission does not
created. Where the nature of the work                       consider any need for statutory wage
cannot be described as token, where it                      boards. There is no reason why
is a full day’s work on a project that                      relatively better organised sets of
builds durable common assets, there                         workers should not use the method of
is     a    case      to     insist   that     the          collective negotiations to get their
remuneration must be equivalent to                          wages fixed from time to time. Also,
the        minimum          wage      (for     the          the Commission is not sure that
employment). We wil l, therefore ,                          successive Wage Boards have really
recommend that this distinction may                         solved the problem. In fact, the
be borne in mind in determining                             Commission is of the view that there
whether the law on minimum wages                            is no need for any wage board,
should be deemed applicable to                              statutory or otherwise, for fixing wage
the situation. (If there is a dispute in                    rates for workers in any industry.
this       regar d,    it     can     be     raised
before the National Labour Relations                        Law     Relating       To   Working
Commission, and the Commission’s                            Conditions and Welfare
decision will be regarded as final –
binding        on          both     parties      to         6.119 Issues relating to working
the dispute). This will ensure that                         conditions and welfare account for a
workers in calamity stricken areas are                      big part of the labour laws. Broadly,
protected from exploitative wages, and                      these laws can be classified into two
yet receive at least half a bread to                        groups, one dealing with specific
fend off starvation.                                        activities, such as Factories Act 1948,
                                                            Mines Act 1952, Building and other
6.118        By way of simplification, we                   Construction    Workers     Act   1996,
have attempted a draft law on wages,                        Plantations Labour Act 1951, Beedi
which is Appendix-III to this chapter.                      and Cigar Workers (Conditions and
If this kind of law gains acceptance, it                    Employment)      Act    1966,     Motor
will result in the repeal of existing                       Transport Workers Act 1961, Shops
laws like Minimum Wages Act 1948,                           and Establishments Act and so on; the
Payment of Wages Act 1936, Equal                            other relating to activities across the
Remuneration Act 1976 and Payment                           board, as for example Contract Labour


                                                      369
(Regulation and Abolition) Act 1970,                       accompanying Cess Acts.          There are
Chi ld     Labour        (Prohibi tion        and          even a larger number of welfare laws
Regulation) Act 1986, Dangerous                            enacted by the states for different
Machines (Regulation) Act, 1983,                           categories of workers; Kerala state
Inter State Migrant Workmen Act                            perhaps takes the lead in the number
1979, and so on. Besides these, there                      of welfare funds, both statutory and
ar e     also     specific     welfare       laws          non-statutory.
providing for a levy of cess on the
activity at a prescribed rate, and the                     6.120      The list of laws seems to be
constitution of welfare funds out of                       growing.     Yet it is not clear why one
which wel fare activi ties for the                         needs so many laws, if the basic idea
benefits of workers and their families                     of all these laws is to provide safe
are taken up; it is in the nature of                       and humane working conditions,
such funds that they seek to provide                       health and safety both at the work
welfare outside the work place, unlike                     place and outside, welfare too, both
the earlier Acts mentioned above                           at the workplace and outside. It may
where, essentially, welfare is provided                    be that in respect of safety, the
only to workers at the work place,                         dispensation may have to be different
excepting for crèches which are                            for different work situations, but
meant for the children of workers (An                      surely this does not call for separate
exception         to   this    wi l l   be     the         laws.      The safety requirements and
Plantations Labour Act 1951 where                          precautions        including    protective
wel far e of the extended type is                          equipment          can    be      suitably
statutorily provided for). Examples of                     incorporated in manuals, drawn up by
the genre of welfare fund laws in the                      experts well versed in the technology
central sphere include Beedi Workers                       that is used, in the nature of activities
Welfare Fund Act 1976, Mica Mines                          carried out by an establishment, in its
Labour Welfare Fund Act 1946, Iron                         effect on work situations and on
Ore Mines, Manganese Ore Mines and                         human beings who work at these
Chrome Ore Mines Labour Welfare                            places and so on.
Fund      Act     1976,       Limestone       and
Dolomite Mines Labour Welfare Fund                         6.121         We    would      recommend
Act 1972 and Cine Workers Welfare                          consolidation of all laws of the kind
Fund       Act,        1981     with         their         described in para 6.119 above and the


                                                     370
enactment of a general law relating to                    can be employed; should have a
hours of work leave and working                           pr ovision        for         letters     of
conditions, at the work place. For                        appointment along with a copy
ensuring safety at the work place and                     of Standing Or ders of the
in different activities, one omnibus law                  establishment           (in    the      local
may    be        enacted,   providing   fo r              language); and issue of a photo
different rules and regulations on                        identity card giving details of the
safety applicable to different activities.                name of the worker, name of
(We have appended a draft indicative                      establishment, designation, and
law on hours of work and other                            so on. The appointment letter
working conditions after this chapter                     and the card should clearly
and an omnibus draft indicative law on                    mention the wages and the
safe ty     in     the   chapter   Labour                 entitlements of leave, social
Administration). Similarly, there should                  securi ty and other benefi ts
be a consolidated law governing the                       along      with        the      term      of
welfare provisions in various laws at                     appointment and condition of
the work place or it can be combined                      separation, etc.
with the laws on wages whereas those
relating to provisions on welfare                    b)   The     law    must       provide        fo r
outside the workplace should be                           specifying the maximum number
merged with the law on social security.                   of working hours in a day/week,
The question then arises what should                      payment of overtime at double
such a consolidated law contain?          It              the rates of wages. However, the
should apply to all establishments                        limitation on employing workers
where 20 or more workers ar e                             on over time by way of monthly
employed, irrespective of the nature of                   and quarterly ceiling needs to be
activity carried on, be it manufacturing                  relaxed, and we recommend
or mining or transport or services or                     that the present ceilings be
any other.                                                increased to double to enable
                                                          gr eater      flexibil ity        to     the
a)    It should provide for certain                       employers         in    meeting          the
      basic rights of the workers;                        chal lenges       of     the      marke t
      indicate a minimum age (say 14                      without being required to seek
      years) below which no person                        approvals etc. The Commission


                                               371
however is not in a position to                           industry     to    include      more
agree        wi th     the         general                occupations,      processes      and
recommendation of the Study                               contingencies        for      which
Group to bring uniformity in the                          exemptions can be provided
daily and weekly hours of work                            including the conditions of such
of industrial establishments and                          exemptions.       However we also
workers       in     other    kinds       of              recommend that the workers
employments,            manual            or              right to wages for overtime
otherwise, in view of the fact                            work at the prescribed rate of
that the work ethic currently                             overtime wages if they ar e
obtaining in both the sectors                             asked to work beyond 9 hours a
needs substantial improvement.                            day and 48 hours a week should
During the evidence received at                           be ensured.
various         centres       by        the
Commission we were told of the                       c)    Likewise, law must provide for
need to provide flexibility in the                        restrictions on employment, such
daily hours of work in the                                as reduced working hours for
context of global competition                             adolescents,      prohibition     of
and     technological             changes.                underground work in mines for
Sub section (2) of Section                                women workers, prohibition of
64      of   the      Factories         Act               work    by     women         workers
contains        a    provision          that              between certain hours and so on.
the     State       Go vernment         can
giv e    exemptions          in    certain           d)   On the question of night work
circumstances by prescribing the                          for women, the Commission
conditions of exemptions from                             would urge that there need not
the pr ovisions of daily and                              be any restriction on this if the
weekly hours of work, rest                                number of women workers in a
intervals, weekly holidays and                            shift in an establishment is not
spread over in the rules. We                              less than five,      and if the
recommend that the list of such                           management is able to provide
contingencies may be suitably                             satisfactory arrangements for
expanded in consultation with                             their transport, safety and rest
the     r epresentatives           of   the               after or before shift hours.


                                               372
e)   At   the      same     time,     the              taken for the creation of these
     Commission is not in favour of                    amenities, common to a market
     any exemptions being granted in                   or small industrial areas.
     respect of establishments in
     export     promotion     zones    or         j)   As      regar ds   Crèches,     the
     special economic zones.                           Commission is convinced of the
                                                       need for this facility and this
f)   The Commission feels that the                     should not be dependent on the
     appropriate Government may be                     number of women workers or
     empowered to grant exemptions                     the number of children between
     from different provisions of law                  the ages of 0 to 6. Childcare is
     in case of emergent situations                    of great social importance and
     that may arise in the workload of                 where both husband and wife go
     an establishment or in cases of                   out to work, arrangements must
     extreme hardship.         However,                be available for parent(s) to
     there should be guidelines in the                 leave the child in the care of a
     respective laws for granting such                 Crèche. Moreover, the provision
     exemptions.                                       of crèches frees the elder sibling
                                                       (usually the girl) to attend
g)   Each establishment having an                      school instead of having to stay
     employment size (including all                    at home to look after the young
     the shifts) over a specified limit                ones.     In   this     view,   the
     must provide for a canteen.                       Commission recommends that
                                                       every establishment employing
h)    Normal     provisions     as    now              20 or more workers must run a
     obtaining     in     several    laws              crèche, properly manned and
     regarding washing fa ci lities,                   equipped either singly or in
     lavatories and urinals (separate                  association with other employers
     for men and women workers)                        and/or local bodies. In the case
     and rest rooms may also be                        of smaller establishments, it
     incorporated in the law.                          must be possible for them to
                                                       jointly provide crèche facilities,
i)   The help of municipal and other                   again, where necessary with the
     local bodies and NGOs may be                      help of local bodies.


                                            373
k)   The   law    must     provide   fo r                consultation amongst employers
     hol idays, earned leave, sick                       and workers. A clear national
     leave and casual leave at an                        policy is called for in respect of
     appropriate scale to the workers,                   such matters.
     apart from maternity benefits for
     women workers. On holidays,                  6.122 What we have said above is
     we would urge the formulation                nothing new, except perhaps what we
     at the National level of a clear             have said about crèches; these are
     policy. We would suggest that                found in the various laws that exist
     apart from the three existing                today,      and     we    are    merely
     National Holidays, namely 15th               emphasising that these can all be
     August, 26th January and 2nd                 consolidated into a single legal
     Octobe r, the other holidays                 framework.        These   are   minimal
     should      be      declar ed    in          provisions, and can be improved in
     consultation with the unions or              individual establishments through
     elected representatives of the               negotiations.
     workers, and there should be a
     limit on the total number of                 6.123 When we come to welfare
     holidays that can be declared in             outside the workplace, the position is
     a year. All these holidays should            not so simple.      As already pointed
     be paid holidays. We do not                  out, the Welfare Fund Acts enacted by
     approve of the practice of                   Parliament provide for a levy of cess
     declaring a hol iday, with or                on the product of the industry/
     without wages, and usually at                activity. There is no contribution
     very short notice on the death of            made by the workers towards such
     a person, howsoever eminent he               funds.     Even here, it is pointed out
     or she may be. Likewise, we do               that       some     of    the     larger
     not also see the necessity to                establ ishments provide far more
     declare polling days as holidays.            benefits than what these funds
     Only half a day’s holiday may be             provide.     As against this, there are
     permitted on such a day to                   general labour welfare funds set up
     those who have to go to cast                 by statutes in several States which
     their votes, the timings of which            cover factories and other notified
     should be decided by mutual                  establ ishments, and the fund is


                                            374
created out of contributions made by              the nature of the activity concerned,
the employer, by the worker and by                with the result that while some funds
the government, normally in the ratio             are affluent, others are not, leading to
of 2:1:1. Such funds, which do not                differences in the levels of benefits
add up to much for each State, are                provided.      And it is not easy to
essentially utilised for recreational and         persuade di ffe rent categories of
educational purposes, including some              workers to pool the resources of their
craft training to wives and wards of              welfare funds with a view to providing
workers. There is a third type of                 uniform benefits.    At the same time,
welfare fund, very popular in Kerala              there is recognition of the need to
and some other states; these funds                integrate at least the administrative
ar e set up for each category of                  structur es    so   that   the   cost    of
workers l i ke coir work ers, motor               administering the fund is kept at a
transport      workers,    construction           minimum.      The    Commission         has
workers, head load workers and so on,             considered the pros and cons of all
and the funds are made up of                      matters pertaining to social security,
contributions     by   employers     and          and made its recommendations in the
workers at stipulated rates per worker            chapter on social security and also in
per month. Some of these funds have               the chapter on unorganised workers.
very   large    corpuses    of   money,           We would only say at this point that
sometimes running into tens, if not,              the present laws on welfare outside
hundreds of crores of rupees. Quite a             the workplace should be integrated as
large number of welfare activities,               far as possible with the laws on social
including a modicum of social security,           security.
are carried out by the funds each of
which has an administrative set up to             Laws Relating to Social Security
carry out these functions. It is
increasingly being recognised that                6.124       The Commission has also
such funds may be the most suitable               considered the recent Workmen’s
vehicles for providing social security            Compensation        (Amendment )        Act
coverage to the workers, particularly             2000, which came into effect on 8th
those in the unor ganised secto r.                December 2000.       By this amendment
However, it is also seen that the size            Act, the words ‘other than a person
of the funds depends very much on                 whose employment is of a casual


                                            375
nature       and   who    is    employe d               arising out of, and in the course of
otherwise than for the purposes of the                  employment; is there any virtue in
employer’s trade or business’ have                      only singling out those situations
been     omitted    in   section       2,    in         covered by Schedule II. The schedule
subsection (1), in clause (n) of the                    can be widened. ‘Many employers’
Act.    We are not able to appreciate                   organisations     have    drawn   our
the implication of this amendment                       attention to item No. (ii) of the
and considering that Schedule II of                     schedule and have suggested that
the Act is a very long list, we are not                 there is no reason why persons
sure whether the deletion of words                      working in clerical capacity should be
‘and who is employed otherwise than                     excluded form the provisions of
for the purpose of the employer’s                       Workmen’s Compensation Act as they
trade or business’ will not cause                       are frequently required to go on the
unintended hardship; also, all the                      shop floor for performing their
entries in Schedule II refer to person                  functions and are equally exposed to
“employed …. .” in some speci fic                       risks.
activity and therefore the need for
deleting the above mentioned words                      6.126      Also in the context of
is not clear.       We would urge the                   Workmen’s’ Compensation Act 1923,
Government to reconsider the matter                     we do not see why we should still
as     the    Commission       feels    that            have on the statute book laws like
amendment has in fact extended the                      Employers Liability Act 1938 and the
Act to the domestic sector.                 The         ancient Fatal Accidents Act 1855; if
Commission recommends that the                          necessary, the relevant provisions of
domestic sector be kept out of the                      these     Acts   may     be   suitably
purview of the Act.                                     incorporated into the Workmen’s’
                                                        Compensation Act 1923.
6.125        While on the subject, we
would also li ke to suggest that                        Laws Relating to Miscellaneous
Schedule II to the Act though long is                   Matters
not complete, in so far as it leaves out
a lot of other situations where bodily                  6.127    Besides the laws that we have
injury leading to loss of earning                       so far looked at, there are still some
capacity or death may be occasioned                     laws, even among those enacted by


                                                  376
Parliament, that are remaining; there              6.129   The Commission carefu lly
are also other matters, not necessarily            considered the recommendation of
statutory, on which we would like to               the Study Group to provide statutory
offer brief comments.                              shape to bodies such as the Indian
                                                   Labour Conference, Standing Labour
6.128     To begin with, we take the               Committee, State Labour Advisory
Apprentices Act 1961. We want to take              Boards, Industrial Committees, and so
the opportunity to point out that the              on. We propose to deal with the
small    enterprises    are    presently           matter in detail in the chapter on
deprived of the opportunities of having            Labour Administration.
apprentices, since the law lays down a
minimum strength of tradesmen of
di fferent      categories     in     an           6.130    We come back to our earlier
establishment for allowing apprentices             task of looking at such central laws,
on a proportionate basis. There is                 as have not so far been considered in
need to provide flexibility so that even           the earlier paragraphs. We begin with
if the strength of different categories            the following enactments namely,
of tradesmen in a small enterprise                 Personal   Injuries   (Compensation
does not match up to what is required              Insurance) Act 1963, Personal Injuries
to keep apprentices, if the combined               (Emergency Provisions) Act 1962, and
strength is such as to allow keeping an            Public Liability Insurance Act 1991.
apprentice of a particular category as             The Ministry of Labour does not seem
per the proportion laid out, the small             to be involved in the implementation
enterprises should be allowed to                   of these laws. Also, the first of these
engage        such   apprentices.   The            two laws seems to apply only when
Commission has separately dealt with               there is an emergency, and the third
matters relating to improving the                  law applies to persons other than
necessary infrastructure for making                workmen (section 3(i) of the Act). We
the workforce more skilled and for                 therefore do not make any comments
coping with the challenges that come               on these. Likewise there are a large
with increasing globalisation.       Our           number of environmental laws which
suggestions in this regard can be                  also find place in the books on Labour
found    in    the   chapter   on   Ski ll         Laws, and we are not making any
Development.                                       comments on them either.


                                             377
6.131        However, there are a large                 substitute its provisions to the
number of laws which indisputably are                   benefit of children which would
labour laws which we have not dealt                     also aid the abolition of child
with so far. We deal below with the                     labour.
remaining laws briefly:
                                                   (iii) Children (Pledging of Labour)
(i)     Bonded       Labour         System              Act 1933. We are not sure of the
       (Abol ition) Act, 1976. I n a                    need for such an Act, and even
       manner, it can be argued that                    if a situation of pledging of child
       this is not a labour law but only                labour obtains, surely that can
       a welfare legislation. While all                 be incorporated as part of the
       the other labour laws relate to                  general     law.     Also,    we    are
       situations where there is an                     shocked at the proviso to the
       employer-employee nexus, this                    definition of ‘an agreement of
       is about the only law where the                  pledge of the labour of child’
       reverse takes place i.e. even the                which      r eads     as      follows:
       existing r elation of master-                    “Provided that any agreement
       servant is snapped, the affected                 made without detriment to a
       person released from bondage                     child     and       not      made    a
       and provision sought to be made                  consideration of any benefit
       for his/her rehabilitation. The                  other than reasonable wages to
       Commission        regar ds      the              be paid for the child’s services
       implementation of this law by                    and terminable at not more than
       the    Ministry   of   Labour    as              a week’s notice, is not an
       appropriate, as it emanates from                 agreement within the meaning
       Article 23 of the Constitution                   of this definition”. This proviso
       and deals with working people.                   would amount to approving
                                                        child labour if reasonable wages
(ii)   The Commission has dealt with                    are paid. We think that, given
       the Child Labour (Prohibition                    this proviso, the entire purpose
       and Regulation) Act 1986 in the                  of the law is vitiated. Pledging
       chapter on Women and Child                       of child labour can be made a
       Labour, and has suggested a                      crime under the criminal law of
       new law on the subject to                        the     land.   The       punishment

                                             378
    proposed in the existing law is                   trust workers, the application of
    also inadequate, considering the                  the    thir d   law    comes       into
    nature       of   the    of fence     and         operation and may be, over the
    modern thinking on the subject.                   next few years, the first law
    We     are    in the era         of the           namely          Dock        Workers
    Convention of the Rights of the                   (Regulation of Employment) Act
    Chi ld and would, therefore ,                     1948 will cease to have any
    recommend the repeal of this                      relevance for major ports. We
    law.                                              are also not sure how far state
                                                      governments will be willing to
(iv) Dock Workers (Regulation of                      adopt this 1948 law in respect of
    Employment) Act 1948                              minor ports in their jurisdiction.
                                                      So, perhaps, the repeal of the
    Dock Workers (Safety, Health                      1948 la w,      may be only a
    and Welfare) Act 1986                             question of time.      However, the
                                                      other law namely Dock Workers
    Dock Workers (Regulation of                       (Safety, Health and Welfare) Act
    Employment) (Inapplicability to                   1986     should       be   of     much
    Major Ports) Act 1997                             importance to workers of minor
                                                      ports too. We would recommend
    These Acts, other than the last,                  that    the     Director        General
    are applicable to both major and                  (Factory Advisory Services and
    minor ports, but in effect, the                   Labour Institutes) under the
    first two laws have been applied                  Ministry of Labour, who looks
    only to major ports. The State                    into these matters as far as
    governments         which       are   the         major ports are concerned, be
    appropriate        governments         in         enabled to advise suitably State
    respect of minor ports do not                     governments as well, at least in
    appear       to   have     taken      any         respect of some of the larger
    recourse to these laws. Even in                   minor ports and also the newly
    major ports, to the extent that                   established private sector ports,
    Dock Labour Boards are being                      to deal with the problems of
    abolished         and     the     entir e         safety, health and welfare of
    workforce merged with the port                    dock workers in minor ports.


                                                379
(v) Employment                   Exchanges                 central/state government offices
    (Compulsory Notification                of             also, as at present. In passing,
    Vacancies) Act, 1959.                                  we would also like to point out
                                                           that the salary level of rupees
    This Act is essentially designed                       sixty per month, above which
    to know the nature of vacancies                        alone vacancies will have to be
    that may arise in establishments                       noti fied,   is     raised    sui tably
    to which the Act applies, and to                       keeping in view the current
    fa ci litate     the     Employment                    levels       of      wages          and
    Exchange         Organisation           to             emoluments.
    sponsor suitable candidates for
    filling up such vacancies. The                     (vi) The Employment of Manual
    act also, helps to generate                            Scavengers and Construction of
    information          relating    to    the             Dry Latrines (Prohibition) Act
    employment market in a region,                         1993.
    state and the country as a
    whole, and incidental ly wi l l                        We see that the Act applies in
    enable to identify pockets of                          the first instance to the states of
    scarcity in stipulated trades and                      Andhra            Pradesh,          Goa,
    alert the training authorities to                      Karnataka, Maharashtra, Tripura
    provide for training in such                           and West Bengal and to all
    trades. In the context of likely                       Union Territories, and that it
    requirements of workers with                           also applies to such other states
    specified multiple skills, we feel                     which      adopt      the     Act     by
    that a strict and imaginative                          resolution passed in that behalf
    implementation of this law will                        under clause (1) of Article 252
    help    in     the    long      run.   We              of the Constitution. We do not
    therefore recommend that the                           know whether any other State
    provisions of this law be made                         has      passed     the      necessary
    applicable to all establishments                       resolution in this regard. Nor
    to which the general law of                            are we aware of the extent to
    employment relations will apply                        which the implementation of the
    i.e. these employing 20 or more                        law in States already covered,
    workers. This should include                           namely, Andhra Pradesh, Goa &


                                                 380
     so on, has been effective. The                           (Regulation of Employment and
     Human Rights Report of 1999                              Conditions of Service) Act 1979.
     has     adduced               evidence      that
     should shock, and cause concern                          This is a well-intentioned piece
     and shame. We refer to it in                             of legislation but implemen-
     detail in the succeeding chapter                         tation   has    not      been         easy
     devoted to the unorganised                               because of the involvement of
     sector. We strongly urge that the                        both the State Governments-
     la w        be      made         universal ly            the state of origin of the worker
     applicable without further delay                         and the State in which he works.
     wi th deterrent penalties fo r                           The      matter       is         further
     infringement.                                            compounded by the fact that
                                                              very often the workers do not
(vii) Equal Remuneration Act 1976                             happen to have been recruited
                                                              by contractors and come to work
     In our suggested law on wages,                           at the destination state on the
     we      have            incorporated         the         basis of information gathered
     provision of equal pay for equal                         from their relatives, friends, etc.
     work. We reiterate the same.                             During    its   visits     to    States
     The         Commission               howeve r,           particularly like Orissa, Bihar,
     recommends that the important                            Chattisgarh which have a history
     pr ovisions              of     the        Equal         of sending large numbers of
     Remuneration Act other than on                           unskilled workers to other states
     wages            i.e.     Prohibition         of         the Commission came across the
     discrimination against female                            view expressed both by workers’
     workers             in         matters        of         organisations and the State
     recruitment, training, transfers                         Go vernments,      that         the    Act
     and         promotions           should      be          should apply whether or not the
     incorporated              either      in     the         workers have been recruited by
     employer-employee relations law                          contractors. The Commission
     or     in    the        la w    on    Working            has seriously considered the
     Conditions.                                              matter, and although we are
                                                              fully sympathetic to the position
(viii) Inter-State Migrant Workmen
                                                              that workers from other states


                                                        381
who     may       not     have   been              worker hailing from another
recruited by contractors, should                   state to work in the unskilled
not be subject to exploitation or                  category.         As for conferring
discrimination; we feel that the                   more powers to the originating
Government may not be in a                         state    than      what      the     Act
position to legislate separately                   presently provides so as to
for such workers or provide the                    prevent exploitation and non
benefits of the present Act by                     discrimination vis. a vis. the
extending coverage to them in                      workers belonging to the state
view    of    the       Constitutional             where the establishment is
provisions enabling a citizen to                   located, the Commission would
seek employment anywhere in                        only observe that the matter
the country (Article 19). It will                  involves Centre- State relations,
not be proper to provide legal                     and should, therefore, be taken
protection over and above what                     up by the Labour Ministry in the
is available to workers born or                    appropriate forum.
resident in the host State to
those who have come from                       (ix) Labour Laws (Exemption from
outside.         Howeve r,       these             Furnishing         Returns          and
observations should not be                         Maintaining Registers by Certain
construed to mean that we do                       Establishments) Act, 1988.
not endorse the need to deal
with the problems of migrant                       This is an enactment intended
workers.         Adequate provisions               to     provide         exemption      to
will be made in the general law                    employers         in      smal l    and
that we are recommending. We                       very     smal l        establ ishments
would also recommend that to                       from furnishing returns and
keep proper records and access                     maintaining        registers       under
to information, employers in the                   certain labour la ws. ‘Small
host state be required to inform                   establishment’ has been defined
the state Government as well as                    to mean an establishment in
the Government of the state to                     which not less than ten and not
which      the     worker     belongs              more than nineteen persons are
whenever they engage any                           employed or were employed on


                                         382
any day of the preceding twelve                  only to those listed above. There
months;            ‘very          smal l         is     no       reason       why     the
establishment’ has been defined                  simplification of returns to be
to mean an establishment in                      sent      and     registers     to    be
which    not      more     than    nine          maintained cannot be extended
persons are employed or were                     to all aspects, including social
employed on any day of the                       securi ty. I n fact, we would
preceding twelve months. The                     suggest         that     simplificatio n
laws in respect of which this law                can       be    extended       to    al l
provides for exemption from                      establishments irrespective of
filing returns and maintaining                   the employment size. We would
registers as prescribed are the                  suggest the setting up of a high
following: - Payment of Wages                    power group which can deal
Act, 1936; Weekly Holidays Act                   with this question and come up
1942; Minimum Wages Act 1948;                    with recommendations. After all,
Factories Act 1948; Plantation                   it must be recognised that the
Labour      Act    1951;     Working             returns are being asked for,
Journalists and Other Newspaper                  essential ly           for   statistical
Employees         (Condi tions       of          purposes and in some cases for
Service)     and     Miscel laneous              information on compliance with
Provisions Act 1955; Contract                    safe ty         regulations.         But
Labour         (Regulation          and          considering the delays, the
Abolition)          Act           1970;          gaps and unevenness of data,
Sales    Promotion         Employees             these returns in the aggregate
(Conditions of Service) Act 1976                 do not serve much purpose. It
and      Equal       Remuneration                may be desirable to rely on
Act 1976.                                        periodic sample surveys which
                                                 will furnish the data necessary
The law thus will cover all those                for policy formulation. We would
establishments for which we                      urge that this matter be pursued
have proposed a separate simple                  vigorously. Some States have
law (see para 6.106 above).                      already simplified the forms
However, the 1988 law does                       that are to be submitted, and
not extend to all labour laws but                ar e experimenting with one

                                           383
     simple form. There is no reason            new establishments are exempted
     why    this   should     not   be          from the operation of labour laws for
     prescribed and given effect to.            the first few years, say 5 years, of its
                                                operation. Section 16 of the Payment
6.132   Though there is merit in what           of Bonus Act 1965 has been referred
has been stated by the Study Group in           to, in this context. We are not sure
Para 90 of i ts Report regar ding               that there is merit in this request. We
constituting tripartite boards based on         have repeatedly pointed out earlier
the Mathadi Boards in Maharashtra.              that   social    security     pr otection,
As per the evidence received by the             including economic security, is a sine
Commission wi th regard to the                  qua non and also the starting point of
Mathadi Workers in Maharashtra and              labour protection and in such a
Headload workers in Ke rala, the                scheme of things, infancy clauses
system seems to have lent itself to             have    no      place.     Any   prudent
certain abuses such as the closed               entrepreneur starting a business
shop system of working where new                should take note of all the legal
entrants are not allowed, and proxy             provisions he will be subjected to and
work is allowed, whereby those who              plan his operations accordingly. We
are actual ly enrolled wi th these              therefore do not consider it necessary
boards engage others to work in their           or desirable to incorporate an infancy
places b y paying a part of the                 clause in respect of any matter
remuneration received.      The closed          covered by labour laws. The State
shop system also creates problems for           may     consider         assisting   new
the employers who hire workers but              enterprises in other ways.       Some of
are not able to get the work done as            us, however, do consider that there is
per their requirements.       Perhaps           need for such assistance from the
better results can come from the                Government, for a variety of reasons,
system if due steps are taken to                including the need to induct new
prevent the closed shop system and              entrepreneurs who otherwise may
work by proxy.                                  feel nervous about venturing out.


6.133 The Study Group examined a                6.134 Of course, there is no question
suggestion to provide an ‘infancy               of exemption when the law does not
clause’ in labour laws by which all             apply to an establishment or class of


                                          384
establishments; such may be the case                         6.135 We have given considerable
in    respect    of     central      or        state         thought to the question of the
governments which are discharging                            workers who are engaged in the khadi
‘sovereign’ functions. The question,                         industries, spinners and weavers and
what are ‘sovereign’ functions, may be                       also to crafts persons engaged in
the subject of contentious debate. We                        programmes      and      projects   co-
do not propose to enter into such a                          ordinated by the KVIC.     We are fully
debate. We would broadly exclude                             aware of their special position, and
from the coverage of labour laws that                        we have the utmost sympathy for
we     propose,       al l   functions          and          them.   This is particularly so because
functionaries,        including       defence                of the traditional and unique position
forces, para military forces, police, fire                   of khadi and the fact that spinning
services and prison services, services
                                                             and weaving and handicrafts are
connected with law and order, tax levy
                                                             today providing employment, and
and tax col lection, internal and
                                                             therefore, livelihood to many lakhs of
external       security,      law     making,
                                                             women and men in the rural areas
administration of justice, and external
                                                             where this category of people have
relations. Where in a case, the
                                                             hardly any other means of livelihood.
functions are not so very discreet and
                                                             These are days when people are
include other activities which do not
                                                             being retrenched from jobs, and are
fall in the above mentioned categories
                                                             not able to find alternative jobs. The
of ‘sovereign’ functions, then we may
                                                             protection of avenues of employment
stretch the point a little and designate
                                                             is, therefore, an imperative need. We
all such as ‘sovereign’. We may leave
                                                             are, therefore, very keen that our
this matter to be decided by the
                                                             recommendations should not result in
appropriate          government,           whose
decision will be final. At the same                          anyone losing even the half bread

time, we strongly urge that persons                          that he or she is able to earn today.
employed in these ‘sovereign’ tasks                          Even so, we are equally keen that
are    also     adequately          pr otected,              anyone who does an eight hour job
including protection of their ‘right to                      gets a minimum wage.          We have
form associations and unions’ as                             made strong recommendations about
enshrined       in    Article   19        of    the          minimum wages and said that all jobs
Constitution of India.       We recommend                    and any regional or state legislation
accordingly.                                                 on minimum wage should not go


                                                       385
below the national minimum that                  Labour laws. We recommend that any
Government may prescribe.       So, we           violation of a law or rules thereunder
cannot recommend exemption from                  be treated as an offence, which must
the national minimum.     However, we            be made triable by a labour court
also do not want to recommend                    which will have to be empowered for
anything that may lead to instant loss           the purpose. We also recommend that
of means of livelihood for larg e                any offence that is not merely a
numbers of persons.      We, therefore,          violation of labour laws but also a
recommend that the KVIC reviews it               violation of basic human rights should
remuneration system to reach the                 attract more stringent punishment.
level of the prospective or prescribed           This category of offences will include
national   minimum       as   soon    as         engagement         of    chi ld   labou r,
possible, within five years at the               discrimination between men and
latest; that the KVIC ensures that its           women workers in matters of wages/
activities are confined to facilitation          remuneration, opposition to the
and sale-purchase, and as far as                 formation of trade unions by workers
possible organised on the basis of               in the establishment, recourse to
cooperatives; that its system of                 bonded labour and others i.e. all
remuneration does not lend itself to             those where basic human rights are
the   description   of    wages      and         infringed.
employment; that it adjusts its piece
rates for hours of work to reach the             6.137 On the other hand, there are
relation that is being prescribed with           ‘technical’ offences, such as non
time rates; that the workers whom it             maintenance        of    r egisters,   non
serves or organises have access to a             furnishing of returns and the like, for
security system that is equivalent to            which        law   may     provide     fo r
what is available to workers in small            compounding; such compounding
scale industries with 19 or less                 may be permitted, provided it is
workers or that prescribed for workers           approved at an appropriately senior
in the unorganised sector.                       level in the administration. We also
                                                 recommend that at least 75% of the
6.136 We have not, in the earlier                proceeds of such ‘compounding’ be
parts of our Report, made any                    credited to an appropriate welfare
recommendations on the penal part of             fund for being used for the benefit of


                                           386
workers. It may also be provided that            salaries without work because there
a subsequent offence of the same type            was no infrastructure for discharging
by an employer will not be allowed to            their duties”. These observations were
be compounded, but will invite double            made by the Chief Justice while
the penalty in addition to imposition of         hearing a Public Interest Litigation
fine for each day of continuance of              (PIL) from Ranchi Labour Lawyers
offence or infringement.                         Association against the Government’s
                                                 failure to even provide premises for
6.138 We also recommend that where               Labour Courts.   Given the number of
in the case of an offence coming up              cases pending in labour courts/
for hearing it becomes necessary for             industrial   tribunals,   it   becomes
the complainant worker to attend                 necessary to devise methods by which
hearings more than once, the worker              cases get disposed of with reasonable
must be reimbursed for loss of wages             dispatch. The suggestion in the earlier
and expenditure incurred by him for              paragraph to compensate the worker
travel etc., in respect of the second            for loss of wages and expenditure
and subsequent hearings, unless the              incurred by him, in respect of the
complainant-worker is at fault. Such             second and subsequent hearings will
payments may be either recovered                 hopefully expedite matters. Further, a
from the employer and paid to the                provision may be made in the laws
worker, or in the alternative, the               that all cases must be disposed off in
expenditure may be borne by the                  a span of three hearings, and where
state.                                           this is not possible, the labour court
                                                 should in its award give reasons for
6.139 We also consider it necessary              taking more hearings. In the scheme
to look into the problems or delays in           of adjudication the hierarchy, namely,
labour courts/industria l tribunals.             labour courts and Labour Relations
Very recently, the High Court of Ranchi          Commissions, that we have proposed,
delivered severe strictures on the               the Labour Relations Commissions
Chief Minister of Jharkhand for the              may also be entrusted wi th the
state of Labour Courts and Tribunals in          responsibility to assess the work of
the State.   The Chief Justice said “ it         the labour courts, particularly in the
would withdraw judges from Courts                matter of expeditious disposal of
(Labour Courts) as they were drawing             cases. With the constitution of an All


                                           387
India Labour Judicial Service that we              only on a complaint (a) made by or
are recommending in the succeeding                 with the previous sanction in writing
paragraphs, we hope that we will have              of the Director General or the Chief
a dedicated and competent set of men               Inspector; or (b) made by an office
and women as presiding officers of                 bearer of a voluntary organisation
labour courts who will be able to                  register ed   under     the       Societies
discharge     their     r esponsibili ties         Registration Act, 1860; or (c) made
efficiently and expeditiously.                     by an office bearer of any concerned
                                                   trade union registered under the
6.140 We     h av e     looked   at   the          Trade Unions Act, 1926.
provisions in several labour laws
                                                   6.141 Thus we see that there is a
regarding the sanction of prosecution
                                                   progressive liberalisation in the law
and taking cognisance of offences.
                                                   and we would recommend that the
Generally it is the inspector alone who
                                                   right to file a complaint in the court of
can file a prosecution, and only a
                                                   competent      jurisdiction       ma y   be
magistrate of First class who can take
                                                   vested, in addition to an inspector or
cognisance of the complaint. Latterly
                                                   an officer authorised for the purpose,
we see a certain relaxation of such
                                                   in the person aggrieved or an office
provisions. In the Equal Remuneration
                                                   bearer of a trade union of which the
Act, 1976, it is provided in section
                                                   aggrieved     person   is     a   member
12(2)(b) that cognisance can be taken
                                                   or in a recognised welfare institution
of a complaint made by the person
                                                   or organisation. Where a vexatious
aggrieved by the offence or by any
                                                   malicious or flippant complaint has
recognised welfare insti tution or
                                                   been made, the complainant may be
organisation. Section 16 (1) of the                visited with a stringent fine.
Child   Labour        (Prohibi tion   and
Regulation) Act 1986 enables any                   6.142 We also recommend that all
person, police officer or inspector to             Rules and Regulations under the law
file a complaint of the commission of              must be first published as draft Rules
an offence under the Act. Section 54               or draft Regulations, giving a period
of the Building and other Construction             of ninety days for comments, and
Workers (Regulation of Employment                  must be finalised only after the
and Conditions of Service) Act 1996,               comments, if any, received within the
provides for cognisance to be taken                stipulated period are examined.

                                             388
6.143 We have s o far dealt wi th                   subject in detail). Essentially, labour
issues with reference to only Central               administration in India consists of
laws. Excepting for some passing                    implementatio n          of     labour        laws,
references to Shops and Establish-                  though we recognise that the labour
ments Acts and Welfare Fund Acts of                 administration may consist of non-
States, we have not examined the                    statutory activities l i ke workers’
State laws in any detail. There is, no              education, craftsman’s training other
doubt that such an examination would                than the Apprentices Act, and so on.
have enhanced the value of our                      Though labour administration is the
Report. We consider that having                     executive arm of the State, we would
looked at all issues - employment                   like to see the administration as the
relations, wages, welfare, safety and               guide, philosopher and friend of both
health, working conditions and social               workers, and their organisations, and
security - in a ‘macro’ context i.e. at             employers and their organisations,
the level of the whole country, our                 rather than be a policeman, finding
recommendations can validly apply to                faults and prosecuting parties. It
situations in all the States. Further,              becomes necessary therefore not to
where a State considers it necessary                judge    the      performance             of     a
to legislate for an issue or problem                functionary         in          the      labour
which it considers unique and peculiar              administration merely on the basis of
to its area, it can have a legislation on           the number of inspections carried out,
the subject, subject to what is                     number of defects noticed, number of
contained in the relevant articles of               prosecutions launched, percentage of
the Constitution. We would only urge                ‘success’ in these prosecutions and so
that when a State goes in for special               on.   This     cal ls     for    appr opriate
legislation,   it   observes    al l    the         orientation     and      training        to    the
recommendations       that     we      have         functionaries at all levels. Equally it
incorporated in our report.                         becomes necessary to expose the
                                                    functionaries at various levels to the
6.144 We think i t is proper and                    changing situation, occasioned by
necessary that we devote here some                  globalisation,      liberalisation             and
attention to the subject of labour                  privatisation, all of them demanding a
administration (we have devoted a                   high level of competitive performance
separate chapter which deals with the               and ever increasing productivity.


                                              389
Despite the emphasis we have laid in              and other institutions to assist state
our Report on diminishing the role of             governments in this effort.          We hope
the State qua state, what we have                 that the V.V. Giri National Labour
stated    abo ve     vis-à-vis     labour         Institute will take the lead in this
administration is valid. We therefore,            regard,     and      along     wi th      other
strongly recommend that every large               institutions,        help      the        State
State and groups of small States set              Governments in their efforts to
up I nstitutions for training and                 transform the cal ibre of labour
research in labour matters to which               administrators.
labour administration functionaries
can be sent from time to time, for in-            6.145 W h i l e o n t h e s u b j e c t , w e
service training, refresher training and          would also recommend that the law
so on. We emphasise the need for                  may provide for bipartite committees
such institutions to develop research             or tripartite committees to be set up
capabilities too, as such research will           in   areas      of    industrial       and/or
aid the training programme, and vice              commercial activities to function as
versa. These institutions should also             watchdogs to ensure the implemen-
develop into resource centres with a              tation    of    labour       laws    by     the
sound statistical base. We do not want            establishments and to bring to the
these institutions to be a mere arm of            notice of the administration any cases
the government but want them to be                of violation. Such committees may be
endowed with sufficient autonomy.                 set up even at the level of local
Such institutions already exist in some           bodies including Panchayats. As a
States though not endowed with the                watchdog from within, we think that
kind of autonomy that we would like               these bodies would be in a good
them to have but we want them in all              position to know which establish-
states or groups of states, equipped              ments do or do not follow the laws,
wi th a good l ibrar y, up-to-date                and to what extent. Such a step
computer           equipment         and          would also, in our view, facilitate the
computerised data and so on, and                  formation      of    strong    and     viable
manned     by   persons     with    both          organisations        of      workers       and
academic credentials and labour                   employers at various levels.
administration experience. We want
the V.V. Giri National Labour Institute           6.146 One of the issues that merit


                                            390
consideration in the administration of                   our scheme of things, the labour
labour laws is whether there must be                     relations commissions have multiple
compulsory         registration        of    all         duties including the important task of
establishments.             While           such         identifying col lective bargaining/
registration is feasible, and is provided                negotiating agents. We have also
for in respect of factories, plantations,                suggested that all matters in the
motor transport undertakings and so                      labour field needing adjudication, be
on, the task becomes stupendous                          it a labour-management dispute
when we come down to shops and                           (except collective disputes) or a
establ ishments         and         all      the         workman’s compensation claim or
establishments covered under the                         disputes arising out of and relating to
Minimum Wages Act. The Commission                        coverage of labour laws or disputes
has carefully examined this, and is of                   relating to social security and the like,
the view that while it is tempting to                    will have to be determined by the
recommend            that       al l         the         labour courts at the lowest level, with
establishments including even those                      appeals to the Labour Relations
where the number of employees is                         Commissions. Col lective disputes
one should be registered, i t is                         between the negotiating agent and
expedient     to     make      registration              employer, if not resolved bilaterally or
compulsory ini tial ly only for al l                     in conciliation should be dealt with by
establishments employing ten or more                     appropriate       Labour         Relation
workers, and to progressively reduce                     Commission if the parties do not
the employment limit to five in due                      agree for arbitration. This will need
course.   Provision could also be made                   considerable increase in the number
for the renewal of registration once                     of labour courts in the first instance,
every five years.     A nominal fee may                  particularly     when       we      have
be charged for registration and for                      recommended that labour courts be
renewal. We recommend accordingly.                       vested with magisterial powers to try
                                                         cases relating to offences under the
6.147 We have earlier recommended                        labour laws. The setting up of labour
an integrated labour judiciary system,                   relations commissions also increases
with labour courts at the base and                       the demand for high-level labour
with State/Central/National Labour                       adjudicating functionaries. All these
Relations Commissions at the top. In                     compel us to recommend an All India


                                                   391
Labour Judicial Service which in the             charge of Labour administration need
new dispensation will be viable and              some specific skills and attitudes, and
necessar y.      We        recommend             aptitudes to which we have made
accordingly.                                     reference. Some of these have to be
                                                 identified and developed. Considering
6.148 Equally important in our view              all this we recommend the setting up
is the need for constituting an All              of such an All India Service.
India Labour Administrative Service.
Labour being in the concurrent list of           6.149 Last ly,    we    refer      to     the
the Constitution, the advantages of              paramount      need    for   generating
such a service, which will also enable           emplo yment, employment of the
exchange of officers between the                 ‘decent work’ type. Labour laws have
Centre and the States, are obvious. It           often   been     accused      of        being
must be recognized that the bulk of              stumbling blocks in the creation of
the labour administration in the States          employment, and we hope that what
and union territories relates to                 we have recommended in the above
implementation and enforcement of                paragraphs will not lead to such an
labour laws which are central ly                 accusation. Even so, we would urge
enacted. Though there may be some                that the feasibil ity of generating
State level amendments to some of                further employment through al l
these laws, the main provisions of               practical means including systems of
these laws are common to all States              tax incentives be examined.
and union territories.   We are of the
view that if all the posts of the labour         6.150     In spite of the paucity of the
department of and above the rank of              time at     our disposal, we have
Dy. Labour Commissioners/Regional                attempted to make a draft of what a
Labour Commissioners at States and               comprehensive       La w     on    Labour
Centres are included in the service              Management Relations, as visualised
and also senior level appointments               in this Chapter would look like. It is
such as Executive Heads of Welfare               obvious that for various reasons,
Funds, Social security administration            including the absence of technically
and so on, there will be an adequate             competent legal experts, we have not
number of posts justifying such a                put the draft in the shape and
service.   Moreover, those who are in            terminological precision that a piece


                                           392
of   legislation   should   have    for         at a word-by-word agreement. Even
introduction in the Parliament. Since           so, it has been drafted incorporating
the draft could be made ready only              the recommendations in the Chapter,
towards the very end of our work, it            more to provide an approximate
could not be vetted in a sitting of all         picture   of   the   system   that   is
the Members. It should, therefore, be           visualised than to propose a cut and
taken as our indicative draft, not one          dried piece of legislation.
on which the Commission has arrived




                                          393
                                  APPENDIX - I


                     MODEL STANDING ORDERS



(For establishments employing 20 or more but less than 50 workers)


1.   Classification of Workers


     (1)   Workers shall be classified as: -
           (i)    Permanent: - A worker who has been engaged on a permanent basis
                  or who has satisfactorily completed his probation period.

                  Provided that if no appointment letter is issued or where the worker
                  has been appointed on probation no letter of confirmation is issued
                  at the end of the probation period, the worker shall be deemed to
                  be a permanent worker.


           (ii)   Probationer: - A worker who has been employed to fill a permanent
                  vacancy but is on trial.

                  Provided that period of probation shall be one year which may be
                  extended by three months at a time so, however, that the total
                  period of probation shall in no case exceed eighteen months.

                  Provided further that if the employer fails to issue the letter of
                  confirmation after the maximum period mentioned in the first
                  proviso the worker shall be deemed to have been confirmed.


           (iii) Temporary: - A worker who is engaged for a fixed term for work
                  which is temporary or for temporary increase in normal work.

           (iv)   Apprentice: - A person appointed under the provisions of the
                  Apprentices Act, 1961.


                                             394
           (v)     Trainee: - A person appointed for the purpose of being trained
                   provided that such worker shall be paid at the same rate as a
                   temporary worker.

           (vi) Badli : - A person who is appointed to work in the place of a regular
                   or temporary worker who is on leave of absence.

     (2)   Every worker shall be issued token number or identity card containing his
           name, his father’s name, address, name of the establishment where he
           is employed, his designation, and classification such as permanent,
           probationer and so on.
2.   Appointment Letter
     (1)   Every worker shall be issued appointment letter containing the following
           details:
           (i)     Name of the Worker

           (ii)    Father’s name

           (iii)   Residential Address – Local & Permanent

           (iv)    Designation

           (v)     Date of appointment
           (vi)    Classification

           (vii) Terms of Appointment

           (viii) Nominee for Social Security purposes

     (2)   The letter of appointment shall be issued by a person duly authorised in
           this behalf by the employer.


3.    WORKING HOURS


     (1)   The working hours of the establishment shall be ______ to ______ (here
           give details of the timings of the establishment and also of the worker)
           and any change in this regard shall be communicated to the worker 24
           hours in advance.




                                          395
     (2)   All workers shall be at work at the time fixed and notified.       Workers
           attending late would be liable for deductions of wages.

     (3)   For the work, beyond normal working hours overtime wages shall be paid
           to the workers as prescribed in the Law on Hours of Work, Leave & Other
           Working Conditions at the Workplace at double the rate of his normal
           wages, on a hourly basis.


4.    Shift Working


      Workers may be required to work in shifts, provided that no worker shall be
      required to work continuously for more than fifteen days in the night shift.


5.    LEAVE


     (1)   Every worker who has worked for 240 days or more shall be allowed
           during the subsequent calendar year one days earned leave with wages
           for every 20 days work in case of all establishments above ground and
           one days earned with wages for 15 days work in case of a worker working
           in a mine where the work is carried on below ground, provided that the
           employer may allow leave on a pro rata basis to the workers even before
           the completion of one year.

     (2)   A worker who desires to go on leave shall apply to the employer or any
           other officer of the establishment specified by the employer who shall
           issue orders on the application within a week of its submission or two
           days prior to commencement of leave applied for and where the leave
           application is made three days before its commencement, the order shall
           be given on the same day and if the leave is refused or postponed, the
           fact of such refusal or postponement shall be recorded in writing in the
           register to be maintained for the purpose and the worker shall be supplied
           with a copy of the entry made in the leave register. If the worker desires
           an extension thereof he shall apply to the employer or to the specified
           officer who shall send a written reply either granting or refusing extension
           of leave to the worker at his address maintained in the record or given
           in the original application for leave.

                                         396
     (3)   If the worker remains absent for more than 10 days beyond the period
           of leave originally granted or subsequently extended he shall lose the lien
           on service     unless he explains to the satisfaction of the employer his
           inability to return before the expiry of his leave.


6.   Casual Leave and Sick Leave


     (1)   Every worker shall be allowed 8 days casual & sick leave in a year.


     (2)   Casual leave shall not be granted for more than three days at a time
           except in case of sickness. The casual and sick leave is intended to meet
           special circumstances which cannot be foreseen. Ordinarily previous
           permission of the employer or the Head of the Department or Section
           shall be obtained before availing such leave and where the same is not
           possible the Head of the Deptt. shall be informed as soon as is
           practicable.


7.   Festival Holidays


     Every establishment shall observe 8 holidays in a year, out of which 3 would
     be National Holidays, i.e. Republic Day, Independence Day & Gandhi Jayanti
     and the remaining holidays shall be declared every year and notified to the
     workers by displaying the same on the notice board.


8.   Attendance


     All workers shall be at the workplace specified for them and shall not leave the
     place of work without permission during working hours or without sufficient
     reasons and any unauthorised absence shall be treated as absence liable to
     deductions being made from the wages pro-rata to the period of absence.




                                         397
9.   Stoppage of Work


     The employer may in the event of breakdown of machinery, stoppage of power
     supply, raw material or for any other reason stop the working of the
     establishment and in the event of such stoppage the workers shall be notified
     by notice put up on the notice board. The workers shall be required ordinarily
     to remain within the establishment after commencement of stoppage for not
     more than 2 hours unless the employer has declared the lay off. In the event
     of lay off or if they are not required after remaining 2 hours in the
     establishment they shall be paid the lay off compensation. In case the lay off
     continues for more than 45 days the employer may retrench the workers as per
     law on the subject.


10. Termination of Service


     (1)   For termination of employment of a permanent worker a one month’s
           notice shall be required to be given either by the employer or the worker
           or either party may make payment of wages for one month in lieu of the
           notice period.

     (2)   No notice shall be required by either side for termination of employment
           of a temporary, probationer or a badli worker unless the termination is on
           account of misconduct.

     (3)   Where an employment of any worker is terminated or he or she quits, the
           wages earned by him or her and the other dues shall be paid before
           expiry of 48 hours of termination or as the case may be quitting of
           employment.

11. Discipline, Misconducts and Disciplinary Action

     (1)   All workers shall perform the duties entrusted to them by the
           management from time to time.

     (2)   All workers shall maintain discipline in the establishment and with respect
           to the work of the establishment.


                                        398
(3)   The following is an illustration of acts or omissions which shall be treated
      as misconduct: -


      (a)   Wilful insubordination or disobedience, whether alone or in
            combination with others, to any lawful and reasonable order of a
            superior.

      (b)   Theft, fraud or dishonesty in connection with the employer’s
            business or property.

      (c)   Wilfull damage to or loss of employer’s goods or property or to the
            work in progress.

      (d)   Taking or giving bribes or any illegal gratification.

      (e)   Habitual absence without leave or absence without leave for more
            than 10 days.

      (f)   Habitual late attendance.

      (g)   Habitual breach of any law applicable to the establishment.

      (h)   Riotous or disorderly or violence behaviour during working hours at
            the establishment or any act subversive of discipline.

      (i)   Habitual negligence or gross neglect of work.

      (j)   Resorting to ‘go-slow’ or ‘work to rule’.

      (k)   Striking work or inciting others to strike work in contravention of the
            provision of any law, or rule having the force of law.

      (l)   Conviction in any Court of Law for any criminal offence involving
            moral turpitude.

      (m)   Drunkenness, fighting or riotous, disorderly or indecent behaviour
            while on duty at the place of work.

      (n)   Failure or refusal to wear or use any protective equipment given by
            the employers.


                                    399
      (o)   Failure to comply with norms relating to safety or working in a
            manner which is likely to cause an accident.

      (p)   Causing sexual harassment to female workers.

      (q)   Sleeping on duty.

      (r)   Malingering or slowing down the work.

      (s)   Leaving work without permission or sufficient reason.

      (t)   Threatening or abusing or assaulting any superior or co-worker.

      (u)   Preaching of or instigating others to resort to violence.

      (v)   Going on illegal strike either singly or with others.

      (w) Disclosing to any unauthorised person of any confidential
            information in regard to the working or process of the establishment
            which may come into the possession of the worker in the course of
            his work.

      (x)   Refusal to accept any order or notice or any communication in
            writing.


(4)   No order of punishment under the Standing Orders shall be made unless
      the worker concerned is informed in writing of the alleged misconduct and
      is given an opportunity to explain the allegations made against him.     A
      departmental inquiry shall be instituted before dealing with the charges or
      awarding any punishment.

(5)   Where a disciplinary proceeding against a worker is contemplated and
      where the presence of such worker is likely to, in the opinion of the
      employer, create indiscipline or jeopardise the investigation into alleged
      misconduct, the employer may suspend the worker pending enquiry.


      Provided that during the pendency of suspension, the worker shall be paid
      subsistence allowance at the rate of 50% of the wages for the first three




                                    400
            months and 75% wages thereafter and if after enquiry, the charges
            levelled are not proved, the worker will be entitled to full wages.


            Provided further that if the delay in completion of proceedings and
            enquiry into misconduct is attributable to the worker the subsistence
            allowance shall not exceed 50% of his wages.


      (6)   Where a worker is found guilty of misconduct after an enquiry, the
            employer may warn the worker or impose the punishment of suspension
            without wages for a period of not exceeding 15 days or stoppage of
            increments or demotion or termination or dismissal from service
            depending on the gravity of the misconduct.


            Provided that no such punishment shall be imposed without giving an
            opportunity to the worker to explain his position except if he or she is only
            warned.


      (7)   If a worker is arrested on charge of offence relating to moral turpitude,
            the employer may suspend the worker without pay till such time the
            worker is honourably acquitted and where the worker is held guilty and
            sentenced, the employer may terminate the services of such a worker.


12.   Payment of Wages


      (1)   The employer shall specify a wage period and the date on which wages
            shall be paid, provided that no wage period shall exceed one month.


      (2)   Wages to monthly paid workers shall be paid by the seventh day of the
            succeeding month and in other cases as per provisions of Wages Act.




                                          401
13. Transfer


    Every worker shall be liable for transfer from one department to another and
    from one unit to another provided such units are under the same management.


14. Retirement


    A worker will be liable to retirement on attaining the age of superannuation,
    i.e. 58 years.


    Provided that a worker may be retired earlier on medical grounds.


15. Certificates on Termination of Service


    Every permanent worker shall be entitled to a service certificate at the time of
    his dismissal, discharge, resignation or on termination of employer - employee
    relationship for any other reason or retirement from service.


16. Providing a Copy of Standing Orders to the Workers


    A copy of these Standing Orders shall be given to every worker along with the
    appointment letters.




                                       402
                                APPENDIX - II


                    THE SMALL ENTERPRISES
               (EMPLOYMENT RELATIONS ) ACT 2002



An Act to regulate the employment in small enterprises.

WHEREAS it is expedient to consolidate and amend the laws relating to regulation
of employment in small enterprises and for certain other purposes hereinafter
specified, it is hereby enacted as follows:

CHAPTER I

Preliminary

1.   Short Title, Extent, Commencement and Operation

     (1)   The Act may be called The Small Enterprises (Employment Relations) Act
           2002.

     (2)    It extends to whole of India

     (3)   It shall come into force on —— or from the date notified by the Central
           Government in this behalf.

     (4)   It shall apply to all establishments or enterprises in which not more than
           19 workers are employed.

           Provided that nothing in this Act shall apply to an establishment of a
           Government.

2.   Definitions: In this Act unless there is anything repugnant in the subject or
     context

     (1)   Appropriate Government in respect of an      establishment under this Act
           shall mean the Government of the State in which the establishment is
           situated


                                        403
(2)   Charitable institution: A Charitable institution means an institution
      which is established for the purpose of charity to any living being or
      formed for not any profit motive or formed for the welfare of living beings
      or for preservation of environment or of heritage or for religious
      purposes.

(3)   Child: Child means a person who has not completed his 14th year of age

(4)   Day: Day means a period of 24 hours beginning at mid night.

(5)   Worker: Worker means a person who is wholly or principally employed
      directly for wages or reward in connection with the work of any small
      enterprise or establishment to which this Act applies but does not include
      a supervisor or manager.

(6)   Employer: Employer means an owner or who has the ultimate control
      over the affairs of the small enterprise or establishment.

(7)   Establishment: An establishment or enterprise means manufacturing
      (except of hazardous nature), or mining (except underground mining)
      activity, plantation, construction, service, transport or other enterprises
      and include hospitals, dispensaries, nursing homes, restaurants, eating
      houses, hotels, shops and establishments, charitable, research, training
      and educational institutions, consultancy and solicitors or lawyer
      organisations and other professions such as C.As., Architects, etc.

(8)   Factory: A factory means a place where any manufacturing process is
      carried on and wherein not more than 19 workers are employed.

(9)   Hotel: Hotel means any premises in which business is carried on for the
      supply of dwelling accommodation and meals on payment of a sum of
      money by a traveller or any member of the public or a class of the public
      and includes a club.

(10) Inspector: Inspector means a person appointed as inspector by the
      Government for securing the compliance of this Act, and the Chief
      Inspector and the Dy. Chief Inspector mean the Chief Inspector and the
      Dy. Chief Inspector of small enterprises appointed under this Act.


                                    404
      (11) Restaurant:      Restaurant means any premises in which is carried on
           wholly or principally the business of the supply of meals or refreshment
           to the public or a class of the public for consumption on the premises.


      (12) Shop: Shop means any premises where goods are sold, either by retail
           or wholesale or where services are rendered to customers, and includes
           an office, a store-room, godown, warehouse or workhouse or work place,
           whether in the same premises or otherwise, used in or in connection with
           such trade or business but does not include a factory or commercial
           establishment.


      (13) Weekly Off: Weekly Off means a day on which a worker shall be given
           a holiday under the provisions of this Act.


      (14) Wage: Wage means the basic wage, dearness al lowance, city
           compensatory allowance or house rent allowance or overtime wages or
           wages for leave period or bonus.


      (15) Young Person: Young person means a person who has not completed
           his eighteenth year of age.


      (16) The terms used in this Act but not defined shall have the same meaning
           as assigned in the relevant laws.


Chapter II


Registration of Small Enterprises


3.    Procedure for Registration.


(1)   Within 30 days of commencement of this Act, every employer shall furnish an
      affidavit on a non-judicial stamp paper of Rs. 10/- to the Chief Inspector or Dy.
      Chief Inspector of the State appointed for the area or district where the small
      enterprise is located along with the information in Form ‘A’ appended to this
      Act and the fee for registration of his establishment.


                                         405
(2)   The affidavit shall contain the name and address of the employer, the name
      and address of small enterprise and such other information as may be
      prescribed and an undertaking that information furnished by him in the Form
      is correct to his knowledge and belief and nothing material has been concealed.

(3)   A fee as may be prescribed shall be payable by an employer along with affidavit
      filed by him for seeking registration.

(4)   If an employer seeking registration under this Act has furnished the
      information and fee as required in Sections (1) to (3) above, the Chief
      Inspector shall forthwith issue the certification of registration and make an
      entry in this behalf in a register maintained for the registration of small
      enterprises and If at any time any change occurs subsequently in the
      information submitted by an employer along with the affidavit, the same shall
      be intimated by the employer within 30 days of occurrence of such change by
      a written communication by the Chief Inspector.

(5)   A registration granted under Section (4) shall be valid for five years and the
      registration may be renewed by following the procedure provided in Section (1)
      to (3) by making an application within 30 days before the expiry of registration
      and if an employer fails to make an application before 30 days of expiry of the
      registration his registration may be renewed provided he pays double the fee
      for registration prescribed in Sub Section (3).

Chapter III

Conditions for Employment of Certain Persons

4.    Prohibition of Employment of Children: No child below the age of 14 years
      shall be permitted to work in any establishment and a young person who has
      completed 14 years but not completed 18 years of age may be employed after
      he has been declared fit by a qualified medical practitioner. In mining
      establishments any person who has not completed 18th years of his age shall
      not be employed.

5.    Non-Discrimination against female workers
      The female workers shall not be discriminated against in matters of
      recruitment, training, transfers or promotions.


                                         406
Chapter IV – Conditions of Work

6.    Health –

(1)   Every employer shall ensure to keep the enterprise clean and free from harmful
      material including gases, dust and fumes. He shall ensure that there is no
      overcrowding and there is proper light and ventilation at the place of work and
      shall provide facilities such as toilets, drinking water and for washing either
      individually or collectively.

(2)   He shall ensure disposal of wastes and effluents properly and in case he is not
      able to arrange the disposal of wastes and effluents by himself he shall with
      the cooperation of other enterprises in the same area take effective steps for
      disposal of wastes and effluents.

(3)   The State Government may provide facilities for toilets common for a cluster
      of shops or establishments by seeking cooperation of local bodies.

7.    Safety

      (1)   Every employer of the enterprise where manufacturing, construction or
            mining activity is carried on shall ensure the following safety measures
            at the work place

            (a). Every employer shall ensure that all moving parts of the machines
                  are properly secured, fenced and guarded.

            (b). Every employer shall ensure that Lubrication or adjusting operation
                  or mounting or shipping of belts and other hazardous work near or
                  on the machinery in motion is not allowed except by a specially
                  trained male worker and proper care of the safety of the operator
                  is taken.

            (c). Safety measures in respect of the hoists, lifts, chains, ropes and
                  tackles shall be taken wherever the same are used and it shall be
                  ensured that they are of good mechanical construction and safe for
                  working at the rated capacity.


                                          407
           (d). Young persons are not allowed to work on dangerous machines or
                  engaged in actual mining of the minerals.

           (e). The equipment using/operating at more than atmospheric pressure
                  shall be ensured to be safe for working.

           (f).   Wherever there is danger of injury or irritation taking place to the
                  eyes of the operator/worker proper protective equipment shall be
                  provided to prevent the eye injury.

           (g).   In mining activity the working is done by making benches of not
                  more than 6 metres height from the superjacent ground.

           (h). In case of construction work proper scaffolding is provided where
                  the construction of building is being done at the height of 6 ft. or
                  above and in roofing no substandard material shall be used.

     (2)   Every Employer of the enterprise shall ensure that

           (a)    Necessary fire-fighting equipment and arrangements for the safe
                  exit of the persons employed in the event of the fire is provided.

           (b)    First aid facilities within the enterprises and the medical care in
                  case of accidents requiring immediate medical attention is provided.

           (c)    Where in any enterprise an accident occurs resulting in death or
                  bodily injury to any person which prevents the concerned person
                  from working for a period of 48 hours or more, the same shall be
                  reported by sending a notice to the Deputy Chief Inspector in form
                  ‘E’ with a copy to the Commissioner for Workmen’s Compensation.

8.   Application of Factories Act and Other Laws:

     The Factories Act and other relevant laws shall apply to small enterprises
     wherever storage and handling of hazardous acids, chemicals, gases or
     explosives material is involved.




                                          408
9.    Welfare


      (1)   The employer shall provide shelters/rest rooms/lunchrooms for the
            workers if employing 10 or more workers.


      (2)   In case of a cluster of establishments the employer may in cooperation
            and combination with other employers in the area take steps to provide
            measures for the welfare of the workers such as latrine and urinals,
            canteen, crèche for the children below the age of 6 years of the women
            workers and a local dispensary or hospital for the immediate medical care
            of the workers.


10.   Hours of Work


      (1)   No adult worker shall be required to work for more than 48 hours in a
            week and 9 hours in a day and no worker shall be asked to work
            continuously for more than 5 hours unless he has been given a break of
            not less than half an hour provided that limit of working hours or of
            weekly rest may be relaxed in case of urgent repairs.


      (2)   The total number of hours of work including the rest interval shall not
            exceed 10½ and in case a worker is entrusted with intermittent nature
            of work, urgent repairs and for shops the spread over shall not exceed
            12 hours.


      (3)   Women workers shall not be asked to work normally between 9 pm and
            6 am and during these hours women workers can be asked to work only
            if not less than five women are working during this period at the
            workplace and the employer takes proper steps for the security of the
            women workers and provides a transport from the place of work to their
            residences.


      (4)   The total number of hours of work including overtime shall not exceed
            60 hours in a week.


                                         409
11.   Annual Leave & Holidays

      (1)   Every worker shall be allowed a weekly holiday with wage for the whole
            day as may be fixed by the employer in respect of the worker and any
            change in the weekly holiday shall be notified to the worker at least a day
            in advance provided that State Government may fix different days as
            weekly holidays for different establishments or areas.

      (2)   Every worker shall be entitled to eight days casual and sick leave with
            wages every year.    A worker who has joined after 1st January shall be
            entitled to casual leave pro-rata.

      (3)   Every worker who has worked for at least 240 days in a calendar year
            shall be entitled to 15 days earned leave in the following calendar year
            and a worker who has put in less than 240 days work in the previous
            calendar year shall be entitled to earned leave proportionate to his
            attendance.

      (4)   A worker shall be permitted to accumulate leave upto 45 days in addition
            to the leave entitlement of the current year earned on the basis of the
            work done by him in the previous year and he shall be entitled to
            encashment of entire accumulated earned leave including leave earned
            during the current year pro rata in case his services are terminated or he
            quits the service.

      (5)   A worker shall be entitled to three holidays in a calendar year, namely,
            Independence Day, Republic Day and Gandhi Jayanti.

Chapter V

Wages, Bonus and Social Security

12.   Wages

      (1)   The State Govt. may fix the minimum rates of wages in respect of the
            enterprises covered under this Act. The Minimum Wages may be fixed
            area wise if required and the minimum wages shall be revised once in


                                          410
            five years. However, the State Govt. may declare DA twice a year on the
            minimum wages. All the minimum wages shall be fixed or revised after
            consulting the committee or an advisory board set up in this behalf for
            the purpose and any contract or agreement whereby a worker agrees to
            work for less than minimum wages shall be void ab initio.


      (2)   A female worker shall be paid same wages as are paid to a male worker
            if the work performed by the female worker is same or similar as that
            performed by the male worker.


      (3)   Nothing shall prevent the employer from paying better wages than the
            minimum fixed by the State Government by mutual agreement with the
            workers.


13.    Payment of Wages and Deductions from Wages


      (1)   Every employer, manager or occupier shall be responsible for payment of
            wages to all person employed by him before the expiry of the 7th day after
            the completion of the wage period.


      (2)   No wage period shall exceed one month.


      (3)   All the wages shall be paid in current currency and coin and it may be
            paid by cheque drawn in favour of the worker or by transfer to his
            account in the bank.


      (4)   All wages shall be paid on a working day during the working hours and
            every employer shall issue a wage slip to every worker containing the
            wage period, name, token number, designation, number of days worked
            or units produced, gross wages payable, deductions and net wages
            payable at least 24 hours in advance.


      (5)   The wages of a person whose employment has been terminated shall be
            paid before the expiry of the second working day after the day on which
            his employment is terminated.


                                         411
(6)   Where a worker has worked for more than 48 hours in a week or 9 hours
      in a day the employer shall pay extra wages at the rate one and half
      times of the ordinary wages and where the total hours worked by an
      worker exceeds 9 hours in a day and 56 hours in any week the wages
      for the hours of work put in by the worker above 56 hours he or she shall
      be paid at the rate of twice his ordinary wages.

(7)   The employer shall keep a record of all wages paid by him to his workers
      including the signature/thumb impressions obtained by him while making
      the payment of wages. Such records shall be maintained for a period of
      three years.

(8)   Deductions may be made from the wages or bonus payable to workers
      on account of the following: -

      (a)   For absence from duty in proportion to the period of absence (in
                 terms of hours or days).

      (b)   For causing loss or damage to the property of the employer
            specifically entrusted to him and in such a case the employer shall
            issue a prior notice to the worker and give him an opportunity to
            be heard.

      (c)   For recovering the instalments of loans or advances given by the
            employer to the worker.

      (d)   On account of subscription of the worker towards social security
            under this Act or subscription to any welfare fund constituted by the
            state govt.

      (e)   On account of Income Tax or any other tax payable by the worker
            to the extent the employer is responsible to recover the same from
            the worker from his wages under the relevant tax law.

      (f)   The cost of any amenity such as electricity or water supplied at the
            residence of the worker by the employer or the rental of
            accommodation provided by the employer.


                                    412
            (g)   The subscription or recovery of loans/advances of any cooperative
                  credit and thrift society or cooperative store or any other
                  cooperative for which the worker has authorised the employer.

            (h)   Any donation to Prime Minister Relief Fund or any other relief fund
                  if so authorised by the worker.

            (i)   Any subscription made by the worker to a union if so authorised by
                  the worker.

      (9)   The employer shall ensure that the recoveries/deductions from wages of
            workers are so arranged that a worker receives at least 50% wages in
            cash after such recoveries or deductions.

14.   Bonus

      (1)   Every worker who has put in at least 90 days work in a calendar year
            shall be entitled to annual minimum bonus at the rate of 8.33% of wages
            earned by him during the previous year.

      (2)   The bonus will be disbursed to the workers within three months from the
            close of the accounting year of the enterprise and where the workers
            desire that the same may be paid to them at the time of mutually agreed
            festival the employer shall pay the bonus at the time of the festival.

      (3)   An enterprise which has not been established with a view to make profits
            and which is in the nature of charitable or religious institution,
            educational training and research insti tutions, a construction
            establishment shall be exempt from payment of bonus.

      (4)    Any new establishment will be exempt for first three years from payment
            of bonus.

      (5)   A worker who has put in 90 days or more but has not worked for all the
            days worked by the establishment in the previous calendar year shall be
            paid bonus proportionately to the wages earned by him during the
            calendar year.


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        (6)   The salary limit for eligibility or for calculation of bonus as prescribed in
              the general law shall apply to small enterprises.

15.     Recovery of unpaid wages, illegal deductions etc.

        (1)   Where a worker (including a worker who has been retrenched, removed/
              dismissed or who has resigned) has not been paid wages on the due
              date, or has been paid less wages than that are payable as per this Act
              or has not been paid over time wages, leave wages, bonus, retrenchment
              compensation or any other dues by his employer he may himself or a
              union of which he is a member or an inspector appointed under this Act
              may file a claim before the prescribed authority within a period of one
              year from the date such unpaid dues became payable or came to be
              detected and the application shall contain the name of the employer and
              his address, the name and address of the enterprise, the name and
              address of the manager if any, the nature of dues which are unpaid or
              have been paid less, the period to which such dues pertain, or illegal
              deductions if made from the wages and wage period to which the illegal
              deduction pertain.

        (2)    The authority shall immediately proceed to hear the claim by calling the
              employer or the manager of the enterprise and the complainant and pass
              an order rejecting or upholding the claim. Any person aggrieved by the
              order of the authority may file on appeal before the Labour Court.

        (3)    Where an authority upholds the claim either wholly or in part it shall
              require the employer to make payment to worker and furnish proof of
              making the payment or require the employer to deposit the amount by
              cheque or demand draft of the amount ordered drawn in favour of the
              worker with the authority.

      (4)      If the employer fails to make payment as prescribed in Sub-Section (3)
              the authority shall issue a certificate to the collector of the district who
              shall recover the same and send it to the authority for payment to the
              concerned worker.


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      (5)      The State Government shall designate one of the official of the Labour
              Department not below the rank of an Asstt. Labour Commissioner to be
              authority to hear the claim cases under this Section.

16.     Social Security

        (1)   Every worker shall be entitled to following social security benefits

              (a)    Medical Care for self and dependents

              (b)    Compensation in respect of employment injury as prescribed under
                     the Workmen’s Compensation Act or according to law on social
                     security applicable to the worker.

              (c)    Provident Fund equal to 8% of wages of employers and 8% of
                     wages as his own contribution plus interest and/or a pension at the
                     prescribed rate.

              (d)    In case of a female worker the maternity benefit i.e. 12 weeks leave
                     with wages upto two surviving children.

              (e)    Gratuity at the rate of 15 days of wages for every completed year
                     of service provided the worker has put in uninterrupted service for
                     at least five years provided further that the condition of completion
                     of five years shall not be necessary for receiving gratuity in case of
                     death or permanent total disablement of the worker.

              (f )   Any other benefit such as unemployment insurance or pension, as
                     may be introduced under the social security law by the government.

        (2)   The social security benefits mentioned at sub section (1) above will be
              provided out of the fund consisting of contributions from the employer
              @ 16% of wages paid by him to the workers, contributions by workers
              @ 12 % of the wages and contributions equal to 2% of the wages by the
              State Government.



                                             415
      (3)   The implementation of social security programme will be on the lines of
            the recommendations made by the National Commission on Labour on
            social security.

      (4)   Till such time the new social security system is set up the present system
            will continue.

            Explanation 1- for the purpose of this section the dependents include the
            spouse, dependant children below 18 years of age, dependant parents or
            parents-in-laws, unmarried daughter and invalid children.

            Explanation 2 – Wages for the purpose of this section means the basic
            wages and dearness allowance but does not include any house rent
            allowance, C.C.A. or leave encashment money received from the
            employers w/o actually availing the leave or any travelling allowance or
            bonus or overtime wages.

Chapter VI

Lay Off, Removal from Service and Settlement of Disputes & Closure

      17.   Lay Off:      An employer may lay off his workers for the reasons of
            shortage of power, coal, raw material, accumulation of stocks, break
            down of machinery, natural calamity or for lack of orders. He shall pay
            to his workers lay off compensation at the rate of 50% of wages for the
            period of lay off and unless mutually agreed a worker shall be entitled
            to lay off compensation if he presents himself daily at the appointed time
            at the gate of the enterprise/establishment. If the lay off continues for
            more than 45 days , it shall be lawful for the employer to retrench the
            workers.

18.   Separations/Removals from Service

      (1)   An employer may dispense with the services of a worker who has been
            in his employment for five years or more by giving one months notice or
            wages in lieu of the same and by paying separation compensation
            calculated @ 20 days wages for each completed year of service and a



                                         416
      worker who has not completed five years of service shall be entitled to
      one-month notice or notice pay in lieu and separation compensation of
      15 days wages for each completed year of service.

(2)   The employer may dismiss or remove the worker from service without
      giving any notice or paying any compensation on account of proven
      misconduct which may include absence from duty without notice or
      without sufficient reasons for more than ten days, for going on or
      abetting a strike which is illegal prima-facie or for grave violent behaviour
      at the workplace or for causing wilful damage or loss to the property of
      the employer or for misappropriation or theft.

(3)    A worker who is retrenched as per provisions of sub-section (1) or is
      dismissed by the employer or resigns from service by the employer shall
      be paid his wages and other dues if any and retrenchment compensation
      within 48 hours of such retrenchment removal/dismissal or resignation.

(4)   If a dispute arises between the worker and the employer on account of
      any condition of service excluding wages but including removal or
      dismissal from service the same shall be resolved as under: -

      (a)   The aggrieved worker will first approach his immediate superior
            who in consultation with the head of the establishment will try to
            resolve the grievance and give a suitable reply to the worker within
            15 days.

      (b)   If the worker is not satisfied with the reply received from the
            immediate superior he shall make an application within 10 days to
            the head of the establishment for personal hearing and on receipt
            of such application the head of the establishment will give a
            personal hearing to the worker and also give his decision, after
            personal hearing within 10 days of making of application by the
            worker.

      (c)   In case the worker is not satisfied with the decision of the head of
            the establishment he may approach the conciliation officer of the


                                    417
                  appropriate Government within 45 days who shall hold conciliation
                  proceedings in the matter to resolve the grievance of the worker
                  and make efforts to resolve the same within three months.

            (d)   If the conciliations fail the dispute shall be referred to a mutually
                  agreed arbitrator and where there is no agreement regarding the
                  appointment of an arbitrator, the appropriate Government shall
                  appoint the arbitrator who shall give his award within a period of
                  four months.

      (5)   An aggrieved worker may be represented in any conciliation or arbitration
            proceedings by a trade union registered under the general law, provided
            such a union has at least 30% membership amongst the workers of the
            establishment where such aggrieved workman is or was employed.

19.   Closure

      Where an employer intends to close down his establishment he shall serve one
      month’s notice to the workers before the intended date of closure or pay wages
      in lieu thereof and he shall also have to pay compensation @ 15 days wages
      for every completed year of service to his workers.

20.   Collective Disputes

      (1)   Any collective dispute between the workers and an employer or
            employers arising out of employment, non-employment, terms of
            employment or conditions of labour of the workers may be settled
            between the workers and the employer by negotiations between the
            employer and the trade union if there is a union in existence in the
            establishment failing which the employer or union may take the help of
            conciliation officer of the state government for resolution of their
            collective dispute.

      (2)   If the collective dispute is not resolved bilaterally or in conciliation the
            same shall be required by the employer and the workers to be referred
            to a mutually agreed arbitrator.

      (3)   The bilateral settlement will be valid for a period of four years or for a
            period mutually agreed upon by the parties.


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      (4)    Where the dispute has been referred to an arbitrator the arbitrator shall
            give his award within six months from the date of reference. If there is
            no mutual agreement regarding appointment of the arbitrator the same
            shall be appointed by the Appropriate Government.

      (5)   In any collective dispute in a small enterprise the workers may be
            represented in conciliation or arbitration proceedings by a union which
            has at least 40% membership amongst workers of the establishment to
            which such dispute pertains.

Chapter VII

Miscellaneous

21.   Registers/Records

      (1)   Every employer shall maintain a register of workers, in form ’B’, a register
            of leave in form ‘C’ and a register of muster roll cum wages in form ‘D’
            which will also show the attendance put in by the workers during the
            wage period, the total wage earned and the deductions made from the
            wages of the workers.

      (2)   The employer shall exhibit at a prominent place in his establishment in
            the language understood by the majority of his workers, the notice/
            notices containing information on registration number and date of
            registration of the establishment, the hours of work and the weekly off,
            the list of holidays, the wage period, the wages and allowances
            payable to workers and the date of payment and the name and address
            of the employer and the manager and name and address of inspector
            under the Act.

      (3)    Every employer shall submit a return to the authority with whom the
            enterprise is registered within 30 days after the close of the calendar year.
            The return shall contain the following information:

            (a)   Name of the establishment and its complete address



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      (b)    Name and address of the employer

      (c)    Name and address of the manager (if employed)

      (d)    The nature of business, occupation, trade or industry

      (e)    The date of commencement of the business, occupation, industry or
             trade

      (f )   Average number of persons employed including the break up of
             male, female and young persons (above 14 years but below 18
             years of age).

      (g)    The number of man-days actually worked during the calendar year

      (h)    The number of persons taken on rolls as new recruits during the
             year

      (i)    Number of persons whose services were dispensed with during the
             year

      (j)    The number of accidents that have taken place during the year
             (fatal and non fatal)

      (k)    The total wages paid to the workers during the year

      (l)     Information on the strike or lockout if it has taken place or was
             declared during the year under report and the period of strike or
             lockout, the nature of loss of production and loss of wages to the
             workers.

      (m) Any other information as may be prescribed.

(4)   The employer shall issue an identity card to every worker employed by
      him containing such details as may be prescribed.




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22.   Self Inspection/Inspection

      (1)   Every employer, within 30 days after the end of the calendar year shall
            certify confirming in form ‘F’ that all requirements of safety, health,
            welfare and payment of wages have been complied with by him and the
            certificate will be sent by the employer to the Dy. Chief Inspector with a
            copy to the Inspector of the area by registered post and where the
            employer fails to send the self certificate the Deputy Chief Inspector shall
            direct the Inspector concerned to carry out the inspection of the
            enterprise and the inspector shall after carrying out the inspection furnish
            a report of the violations committed by the employer to the Chief
            Inspector who shall issue a show cause notice to the employer to rectify
            the same specifying the period for carrying out rectification.

      (2)   Any complaint about violation of this law received from the workers shall
            be taken note of by the Deputy Chief Inspector himself whereupon he
            shall direct an Inspector to look into the complaint and furnish a report
            to him and in case the Deputy Chief Inspector finds that the employer
            has violated any provisions of the law he shall call upon the employer by
            a written communication to rectify the same within the specified period.

      (3)   In case the employer fails to rectify the same in spite of the show cause
            notice of the Deputy Chief Inspector as provided in sub section (1) or sub
            section (2) in writing the Deputy Chief Inspector will take up the matter
            with the trade or business organisation of which the employer is a
            member. In case it is still not rectified within 30 days, the Deputy Chief
            Inspector shall be free to take steps to prosecute the employer and where
            the employer is not a member of any trade or business organisation the
            Deputy Chief Inspector may take steps to prosecute the employer if the
            employer has not rectified the violations in spite of issue of show cause
            notice.

      (4)   The State Government shall appoint the Chief Inspector, Joint Chief
            Inspector, Deputy Chief Inspectors and Inspectors of Small Enterprises
            area-wise or district-wise as deemed appropriate and may distribute the
            work jurisdiction amongst them.

                                          421
            (5) The officials mentioned in sub sec (4) shall be deemed to be public
            servants within the meaning of sec 21 of IPC (Act XLV of 1860).

23.   Non Application of Certain Laws

      (1)    Subject to the provisions contained in sub sec (4) of Sec 1 and Sec 8 of
            this Act where this Act applies to an establishment nothing in the
            following laws shall apply to that establishment.

            i)      The Factories Act, 1948 (except those covered by Sec.8)

            ii)     The Industrial Disputes Act, 1947

            iii)    The Industrial Employment (SO) Act, 1946

            iv)      The Minimum Wages Act, 1948

            v)      The Payment of Wages Act, 1936

            vi)     The Payment of Bonus Act, 1965

            vii)     The EPF& Misc. Provisions Act 1952

            viii) The Employees State Insurance Act

            ix)     The Maternity Benefit Act

            x)      The Workmens’ Compensation Act

            xi)     The Equal Remuneration Act, 1976

            xii)    The Contract Labour (R&A) Act, 1972

            xiii) The Interstate Migrant Workmen (RE&CS) Act 1979

            xiv) The Shop & Establishment Act

            xv)     The Mines Act 1951 (except the mines where work is being carried
                    on below ground)

      (2)        If the Shops & Establishment Act of a State confers better benefits than
            provided under this Act, the State may make amendments in this Act.


                                            422
24.   Penalties

      (1)   Fines may be imposed by Chief Inspector or the Joint Chief Inspector as
            specified below:

            (a)   Any person who violates any provisions of this Act as mentioned in
                  Part I of the Form F shall be punishable with a fine which shall not
                  be less than Rs. 1000/- but which may extend to Rs. 2,500/-.

            (b)   For any second or subsequent offence of the same nature and
                  where an employer is held guilty of furnishing false information as
                  contained in Part-I of Form ‘F’ a fine may be imposed which
                  shall not be less than Rs. 2,000/- but which may extend to
                  Rs. 5,000/-.

            (c)   Where a violation as mentioned in Part I of Form F has not been
                  rectified by an employer in spite of the notice issued by the Deputy
                  Chief Inspector or Inspector for rectification of any violation, a fine
                  of Rs.100/- per day for each violation may be imposed for the
                  period till the violation is rectified.

      (2)   Before imposing fine the Chief Inspector or as the case may be the Joint
            Chief Inspector shall give an opportunity to the person or the employer
            concerned to show cause why the fine as proposed should not be
            imposed on him.

      (3)    Without prejudice to any other provision contained in this Act, the Chief
            Inspector or the Joint Chief Inspector shall have all the powers of a Civil
            Court under the Code of Civil Procedure, 1908 (5 of 1908), while
            exercising any powers under this section, in respect of the following
            matters, namely: -

            (a)   summoning and enforcing the attendance of witnesses;

            (b)   requiring the discovery and production of any document;

            (c)   requisitioning any public record or copy thereof from any court or
                  office;

                                            423
            (d)    receiving evidence on affidavits; and

      (4)   Nothing contained in this section shall be construed to prevent the
            person concerned from being prosecuted under any other provision of
            this Act or any other law for any offence made punishable by this Act or
            by that other law, as the case may be, or for being liable under this Act
            or any such law to any other or higher penalty or punishment than is
            provided for such offence by this section.

25.   Trial of Certain Offences

      (1)   Whosoever wilfully obstructs the Chief Inspector, the Jt. Chief Inspector,
            the Dy. Chief Inspector or the Inspector in the exercise of any power
            under this Act or in carrying out the purposes of this Act including by
            prevention of any worker from appearing before the above mentioned
            authorities shall be punishable with a fine which shall not be less than
            Rs. 5000/- but which may extend to Rs. 10,000/- or with imprisonment
            for one month or both.

      (2)   Whosoever furnishes false information as given in Part II of Form ‘F’ shall
            be punishable with fine which shall not be less than Rs. 10,000 but which
            may extend to Rs. 20,000/- or with imprisonment which may extend to
            one year or both.

26.   Cognizance of offences and competence of courts

      (1)   No court shall take cognisance of any offence under this Act unless it is
            filed by a Deputy Chief Inspector or an Inspector appointed under this
            Act.

      (2)   No court lower than that of a Metropolitan Magistrate or a First Class
            Magistrate shall try any offence as prescribed under Section 25 of this Act.

27.   The State Government may grant exemption to any establishment from any
      provision of this Act in any case of emergency occurring in an establishment
      or in case of hardship.


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28.   Rules under Act

      State Government may make rules in respect of any provision of the Act for
      securing the implementation of this Act.

29.   Protection to Official Persons Acting Under This Act

      No suit, prosecution or other legal proceedings shall lie against any public
      servant or any other person in the service of a Government acting under the
      direction of any such public servant for anything done in good faith or intended
      to be done in pursuance of the provisions of this Act, rule or order made
      thereunder.

30.   Power to Remove Difficulties
      The Central Government shall have powers to remove difficulties if any that
      arise in the implementation upto a period of 3 years.




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