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5.1 Introduction
disputes is very important and dynamic concept specially in India where the
between these two parties arise frequently posing a great threat to the
the society gets crippled at this juncture, is set rite the machine of industry
173
The role of the judiciary is very significant in providing social
justice to the workers by the eminent judges. Justice Krishna Iyer in the
case of Indian Express News Papers Pvt. Ltd., Vs Indian Express News
rigid or textually cold but dynamic, burgeoning and warm with life. It
people. It can be pointed out here that in every state certain ideas or values
will be followed and they can be achieved through various laws. These
values are very important to the society because through these values the
state desires to mould the society. In India these values are fundamental
liberty, equality, and fraternity and also promise to secure social, economic
and political justice. The Constitution of India desires to attain these goals
through the legislation and judiciary. In this manner the Constitution has
served as basis for jurisprudence The same is true in the case of industrial
1
1978, I LLJ II (SC), pp.12 13.
174
jurisprudence, therefore it is said that India Constitutional law is the touch
attain a very just and social order. The Industrial Dispute Act, 1947 is a
continued to rule for fight some time. Under the system of Laissez faire
rise to many serious social tensions. But after some time the Industrial
importance for the industry to organize themselves into unions and also
employers.
175
This type of approaches by the workers was resisted by the
employers not only by using physical force, but also by the use of penal
provisions of law for some time but could not be continued for a longer
period. This type of action taken by the employers resulted into some sort
of social consciousness of the needy laid for framing the better working and
service conditions. This was also required the support of the law and
ultimately many labour laws have been passed for the welfare and
protection of the industrial workers and ultimately this led to the birth of
industrial jurisprudence which has been recognized by the state and society.
176
sense jurisprudence includes the entire body of legal doctrine2. Holland3
country but of the general notion of the law itself which is not primarily
nations accept, but to study the nature of law, the nature of legal institutions
Jurisprudence5, and yet for framing of laws, jural basis or sources of laws
the particular law seeks to achieve. These values are of utmost importance
to the society as upon their achievement depends on the future shape of the
society itself. Indeed every law should indicate the choice of value made
by the society and all its processes should work towards its achievement.
2
P.J. Fitzagerald, Salmond on Jurisprudence, Chap 1 Universal Law Publishing Co. Ltd., 2003,
at p.2.
3
T.E.Holland, Elements of Jurisprudence, Chap 1, 13th Edn., Oxford.
4
C.K.Allen, Law in the making (Chap 1), 7th Edn., Oxford Clarendon Press Paper Book, 1964.
5
G.M.Kothari,Labour & Practice, vol. I, 1980, p. A 3.
177
value oriented and seeks to achieve a just and fair social order in actuality
and modified the structure of the society. The progress of the industry has
workshop.
master and slave, nor as master and serf nor even as master and servant, but
The age old theory of laissez faire based upon the so called
freedom of contact was found inadequate and wanting for the development
employees and could not secure the close cooperation of the two. The
6
A.A. Vaidya: Industry & Industrial Disputes - The Judicial Trend, 2009, p.47.
178
it learned too much on the theory of natural rights and misconstrued
them7.
industrialization and its scope is very vast and it touches all the corners
Every legal problem concerning about labour are industrial person comes
the human relation problem, which is only a part of the whole society and
employees.
aspects and hence is of all pervading nature it effects almost all the entire
7
A.A.Vaidya: Industry & Industrial Disputes the judicial trend, 2009, p. 49.
179
world. Industrialization being complex multi faced phenomenon, industrial
Trade union freedoms are the basic feature of a free, open and liberal
nature for accelerating the path and direction of trade unions towards self
reliance, self control and inner and outer democracy and all its feature and
processes. In such social and political frame work legal and judicial process
have helped in consolidating the trade union freedoms in all its facets and
workers are really free through their great union and dominated by outside
force or any director within, can take their proper place in the commercial
tables, with the owners and managers of business where the dignity and
security of the working man and woman are guaranteed by their strength
8
V.R..Krishna Iyer, Law Vs Justice problems & solutions, 1981, p. 114.
180
philosophy and movement as it birth pangs in the social milieu of economic
from the dominant groups which viewed trade union freedom suspicious
It can be said that in the earlier times in India the primitive colonial
Trade Union Act, 1926, and the various public safety ordinances. Essential
Services Act, Criminal Law Amendment Act, The Indian Penal Code, The
Police Act and the Criminal Procedure Code, are a few examples, only such
an attitude persist in the last decades of the 20th century in the guise of
National Security Act, 1980 and the Essential Services Maintenance Act. In
Dispute Act, 1947 and other labour management laws is concerned, it has
been tilting towards social justice rather than trade union freedoms10. The
9
Ganga Sahai Sharma: Trade Union Freedoms in India, 1990, P 189.
10
Ibid.
181
The Supreme Court in India and High Courts under the parameters
grown with a decisive thought towards social justice. Faith in the rule of
but several cases as character a new course of action. In earlier times labour
cases decided around 1948 the High Court dismissed out of hand a demand
by the trade union leaders for a higher wages on the ground that the court
cannot alter the contractual obligations between the parties after this case.
social justice with a view to securing peace and harmony between the
182
or abolish the old ones or after the existing terms and conditions of
has emphatically propounded the very ideas of social justice in the form of
general interest of the community are fast changing and widening with the
result that our old and narrower notions as to the sanctity of the private
interest of the individual can no longer stem the forward following tide of
time and must necessarily give way to the broader notions of general
12
1950 LLJ SC 931.
13
AIR, 1952 SC 252.
183
by the recurring industrial strife. Therefore the Government of India
essential matters.
workers who were very weak and incapable to bargain with the employer
and settle the dispute. With a view to relax the legislative grip and to
the case of J.K. Iron & Steel company Ltd. Vs Iron & Steel Mazdoor
Union14 Mr. Justice Vivien Bose speaking from the Supreme Court laid
safe guard the interest of the workman. In the same case Mr. Bose said that
one sided benefit to the workman should not be given by evolving the
184
The Supreme Court of India during the periods of 1950s decided
industrial dispute generally within the ambit of the strict law and adhering
peace.15 With the effort of Chief Justice Gajendra Ghadkar evolved law in
response to the needs of the society. Therefore the judgment of the highest
Tribunal reveals that the Judges of the Supreme Court have spoken
different times with different voices. Some of the judges in delivering the
Sangh Vs Apollo Mills Ltd.,17 that the social justice is not based on
15
Nirmala Textile Finishing Mills Ltd., Vs Second Industrial Tribunal, Punjab, 1957 SCR, 335.
16
Ganga Sahai Sharma Trade Union Freedoms in India, 1990, p 192.
17
AIR, 1960, SC, 819.
185
of service, and it is something outside these principles and is invoked to do
philosophy that the concept of industrial peace is positive and postulates the
between the employers and employees. The state should try to avoid strikes
deprived and downtrodden people within the parameters of the law. In the
advent doctrine of welfare state confined and routed deeply in the nations
laissez faire absolute. And where the social consciousness of the general
18
1961 I LLJ 22 SC.
186
community becomes more alive and active, the welfare policy of the state
takes a more dynamic forum, the national economic progress stage to stage
and under the growing strength of trade union, collective bargaining and
the working class. One of such persons is justice V.R. Krishna Iyer who
factors may not hold goods in managing human beings who have
cogs in the wheel of machinery. They would like to have a responsible and
respectable place in society and also in the industry where they work for
187
Social justice is justice according to social interests subordinate to
Dilip Kumar20. Justice Bhagavathi said that justice must not only be done
must seem to be done is not a requirement for courts alone, it applies with
equal vigour, and rigour to all those who must responsible for fair play in
action.
judiciary in providing justice and also for the maintenance of good labour
relations between the employees and employers and by which a nation can
The Article 136 of the Indian Constitution provides that the Supreme
Court may, in its discretion, grant special leave to appeal from any
matter passed or made by any court or Tribunal. There has been a long
controversy in the judicial circle about the use of this power. The question
20
1983 Lab. IC 419 SC.
188
leave to appeal against the award of a Tribunal was raised for the first time
in the case of Bharat Bank Ltd., Vs The Employees of Bharath Bank 21 Chief
Justice Kania was of the opinion that the wording of the Article 136 were
Justice Fazal Ali was also of the opinion that since the Tribunal had
all the trappings of the court and performed some kind of judicial functions
nature of writ of certiorari was opened to the petitioners did not necessary
laid to the conclusion that the power of this court under Article 136 of the
highest court in the land could exercise its special power and circumvent
21
1950 II LLJ 921.
22
1959 I LLJ 413.
189
Court laid down a principle that it could exercise its discretionary
adjudication and final decisions of the courts or which disclosed such other
court.
Section 10 of the Industrial Dispute Act, 1947 was questioned, the Supreme
Court of India did not think it right to interfere with decisions taken by the
190
view that Government acting under Section 10 of the Industrial Disputes
Act was doing an administrative Act and the fact that it had to form an
discharge its functions, did not make it the less administrative in character
and the court could not canvas the order closely as it was a judicial or quasi
Judicial Act.
In India it is known fact that the strikes are frequently resorted by the
workers and the trade unions because of various reasons such as lack of
proper trade union consciousness and lack of legal awareness about the
consequences of strikes.
24
1953 I LLJ 174.
191
The trade unions leaders emotionally declare strikes against the
employers using different types of methods. The causes of the strikes are
security.
the employers also have the freedom to use the weapon of lock out in
case workers fail to follow the rules of contract of employment. The degree
of freedom granted for its exercise varies according to the social, economic
and political variants in the system for safe guarding the public interest, the
resort to strike or lock out and in some cases the duration of either subject
imposed this has been criterion underline the earlier legislation for
25
Report of the National Commission on Labour, 1969, p 327.
192
The strikes and lock outs are useful and powerful weapons in the
armoury of workmen and employers and are available when a dispute are
struggle arises between them. Threats of their use even more than their
actually use, influence the course of the contest. The threat is often explicit
much more often tacit but not for that reason less effective26.
Trade unions and employers will have to use very skillfully these
weapons strike and lock out by way of threatening or actual may help one
something to them. But reckless use of this weapon creates the risk of
unnecessary stoppages. The stoppages hurt both parties badly create worse
tensions and frictions and violations of law and order and above all, from
the public point of view they retard the Nations Economic Development.
26
Indian Law Institute Labour Law and Labour Relations, 1987, p 361.
193
work by men done with a view of improving their wages or conditions, or
Strikes are, in other words, weapons in the hand of the workers and their
With the constitution coming into force there was an attempt made
Thapars case27 to infer the right to strike within the confines of Article
does not carry with it concomitant right that unions formed for the
protection of the interests of labour shall achieve their object such that any
being in the interest of public order or morality. The right under Article
27
1950, SCR, 404.
28
(1962) 3, SCR, 269.
194
19(1)(c) extends only to the formation of an association or union concerned
or as regards the steps which the union might take to achieve its object,
they are subject to such laws and such laws cannot be tested under Article
In another case B.R. Singh Vs. Union of India,30 justice Ahmadi was
sit in, work to rule, absenteeism, etc and work. Strike is one such mode of
demonstration by the workers for their rights. The right to demonstrate and
workers. The right has been recognized by almost all democratic countries.
But the right to strike is not absolute under our industrial jurisprudence and
29
Mayuri Patel; Trade Union Law in India, Labour Industrial Cases Journal, 2008, p. 343.
30
1989 (4), SCC, 710.
195
In the case of Communist Party of India (M) Vs. Bharat Kumar and
others31, the Supreme Court adjudicating on the legality of strikes held that
servants come under the scrutiny of the Supreme Court. In the case of Ex-
captain Harish Uppal Vs. Union of India and another32, the court held that
lawyers have no right to go on strike or give a call for boycott and even
The Apex Court further opined that strike as a weapon in any field
it had terminated the services of all employees who had resorted to strike
for the fulfillment of their demands. The said decision was challenged
before the High Court of Madras by filing writ. Learned single judge by
31
1998 (1) SCC 201.
32
2003 (2) SCC, 45.
33
(2003) 6 SCC, 581.
196
interim order, inter alia, directed the State Government that suspension and
until further orders and such employees be directed to resume duty. That
Maintenance Act, 2002 and also the Tamilnadu Ordinance No.3 of 2003.
The Division Bench of the High Court set aside the interim order
The petitioners came up on appeal against the said order and for the same
In the above case the Court set about to answer two important
questions namely :
to go on strike ?
197
(a) Is there a fundamental right to go on strike ?
The Apex Court in the process of answering the same referred the
Bihar and another34 wherein the Supreme Court held that there exists no
Sham Sharma Vs. The Post Master General, Central Circle, Nagpur.35 The
fact of the case that the employees of the Telegraph Department of the
Government went on strike from the midnight of July 11, 1960, throughout
India and the petitioner was on duty on that day. As he went on strike, in
the departmental enquiry, penalty was imposed on him. The same was
challenged before the Honble Court. In that context it was contended that
The court considered the said ordinance and held that Sections 3, 4
and 5 of the ordinance did not violate Fundamental Rights enshrined in Art
34
1962 Supp. 3, SCR, 369.
35
1964 (7) SCR, 403.
198
The Supreme Court reliance on the decisions of Ex-Capt. Harish
Uppal Vs. Union of India and Communist Party of India (M) Vs. Bharat
strike?
activities36.
The Honble Supreme Court of India did not impose a blanket ban
on all strikes. The court further declares that the said strike to be illegal in
36
L. Nageswara Rao, Right to Strike: National and International Perspectives Endowment
Lecture of Smt. Pemmaraju Hymavathi and Satyanaryana on 14-11-2003 pp. 7-9, at Acharya
Nagarjuna University, Guntur.
199
Several decisions of the various High Courts in India as well as the
Supreme Court itself have adverted to and positively affirmed the right to
those Industries where the level of wages was substantially low and the
labour was vulnerable to exploitation, being not well organized and having
1946 which was followed by the adoption of Minimum Wages Act, 1948.
The Act was enacted to secure the welfare of the workers in a competitive
37
Preamble of the Minimum Wages Act, 1948
200
Act, 1948 provides for fixation and enforcement of minimum wages in
labour through payment of low wages. The object of the set is to ensure a
The Minimum wage, as the name itself implies, represents the level
check :
b)For the benefit of workers who are not in a position to bargain with
their employer.38
as39 it is true that the principle of 'equal pay for equal work' is not expressly
'equal pay for equal work for both men and women' as a Directive Principle
of State Policy. 'Equal pay for equal work for both men and women' means
equal pay for equal work for everyone and as between the sexes. Directive
Principles, as has been pointed out in some of the judgments of this Court
38
All India Reserve Bank Employees Association V. Reserve Bank of India, AIR 1966 SC 306.
39
(1982) 1 SCC 618: 1982-I-L.L.J-344
201
have to be read into the fundamental rights as a matter of interpretation.
Article 14 of the Constitution enjoins the State not to deny any person
equality before the law or the equal protection of the laws and Article 16
everyone. To the vast majority of the people the equality clauses of the
Constitution would mean nothing if they are unconcerned with the work
they do and the pay they get. To them the equality clauses will have some
the Constitution in the light of the Preamble and Article 39(d), it is of the
view that the principle 'equal pay for equal work' is deducible for those
articles and may be properly applied to cases of unequal scales of pay based
Association v. Union of India and Others40, the Apex Court having regard
to the principles as laid down above in, gave following relief in the ultimate
analysis:
40
(1987) Suppl. SCC 668.
202
"We accordingly allow this writ petition and direct the respondents
to pay wages to the workmen who are employed as the contingent paid
staff of the Income Tax Department throughout India, doing the work of
Class IV employees at the rates equivalent to the minimum, pay in the pay
cadres"
The Apex Court repeatedly upheld the proposition of equal pay for
equal work in Bhagwan Dass and Others, v. State of Haryana and Others.41
The Apex Court has also observed that the Central Government could not
take any advantage of its dominant position to treat the work as casual arid
State of U.P43 'the epitome of what was held is that casual workers could
employees on the premise that they had acquiesced to the employment with
opined that though on facts, no, discrimination was found, but the principle
of 'equal pay for equal work' was upheld and recognised where all were
41
AIR 1987 SC 2049
42
Bharathiya.Dak Tar Mazdoor Manch V. Union of India and Others, 1988-I-LLJ-370 SC
43
(1986) I SCC637: 1986-I-L.L.J -134
44
(1991) I SCC 619: 1991-I-L.L.J.-349
203
placed similarly and discharging same duties and responsibilities
Others45, the Apex Court followed the aforesaid decisions and held that the
part time Border Wing Home Guards (BWH.G) could not be treated
differently from the permanent staff of the B.W.H.G and are to be accorded
parity with them. The Apex Court confirmed the decision of the learned
judge of the Calcutta High Court to the effect that the part time workers are
waived.
Haryana and Others v. Jasmer singh and others46 laid down the
sets of persons holding differ jobs will have to be evaluated. There may be
on the skills which the holders bring to their although the designation of the job
may be the same. There may also be other consideration which have relevance
to efficiency in service which may justify differences in pay scales on the basis
45
AIR 2003 SC 3569
46
1997-II-LLJ 667 SC
204
the cadre, so that good performance can be elicited from persons who have
reached the top of the pay scale. I There may be various other similar
This Court has repeatedly observed that evaluation of such jobs for the
purposes of pay scale must be left to expert bodies and, unless there are any
therefore not permissible for the respondent workmen to claim parity with
recently in the case of S.C. Chandra and Others v. State of Jharkhand and
Others47 are also noteworthy in this regard: The equation of posts and
salary is a complex matter which should be left to an exert body. The courts
must realize that the job is both a difficult and time consuming task which
even experts having the assistance of staff with requisite expertise have
205
The Supreme Court in the Constitutional Bench comprising in five
by judiciary. Though a case not related with the payment of wage, it has
Board v. Pooran Chandra Pandey49, a two judges bench of the Apex Court
distinguished the decision of the same Court in Umadevi and held that the
employees of the Electricity Board since they have been taken over by the
Electricity Board 'in the same manner and position' and that the Board
Chandra Pandey's case, 34 petitioners who were daily wage employees had
Board. The Apex Court held that the decision in Umadevi's case cannot be
Article 14 of the Constitution. The Apex Court observed that the writ
petitioners have been working from 1985 i.e. they have put in about 22
48
(2006) 4 SCC I
49
2007 (4) KLT 513 (SC)
206
years service and it will surely not to be reasonable if their claim for
regularisation is denied even after such a long period of service. The Apex
and unreasonableness if employees who nave put in such a long service are
labourers are the most vulnerable group in any society. The intention of the
protection because of their vulnerable position and reading the same into
the Constitution50.
50
Rasheed Shaik, Employer to pay Minimum Wage or shut down his business. 2010-III-
L.L.J.p.42
207