Back Wages on Reinstatement is not the Normal Rule

(By Advocate H.L. Kumar)

The Industrial Disputes Act helps the needy and not the greedy. The labour laws are enacted not to harass the employer but to get the injustice undone. The machinery, as provided under the law, cannot be exploited by unscrupulous employees to extract money from the employer in a clandestine manner by abusing the process of law. Of late, the Apex Court has also clarified that the termination of a workman has been set aside, the award of back wages is not the natural consequence. But a lot of money of employers has also flown under the bridge of archaic rule that prevailed for more than five decades providing that full back wages is a concomitant of reinstatement of a workman.

Most of the pending cases in the Labour Courts and Industrial Tribunals pertain to dismissal/discharge of the workmen and linger on for adjudication and ultimately in majority of such cases reinstatement with full back wages is awarded even when the workmen remain gainfully employed since no able bodied person can remain unemployed provided he is willing to work. With passage of time, such workmen are least interested in their reinstatement but make their fortune in getting full back wages for the period when the dispute was pending in addition to their earning by self or gainful employment by abusing the process of law. All along over five decades, the Labour Courts and Industrial Tribunals have been holding that grant of full back wages is a normal consequence when termination of a workman is held either illegal and/ or unjustified and the higher Courts have also been upholding such awards. However, recently the Supreme Court has observed that the payment of back wages is not automatic entitlement to a workman since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case1. It is heartening that though late, the Apex Court in another case, has held that when termination of a workman is set aside, the award of back wages is not the natural consequence2.

Anybody, having the elementary knowledge of labour laws, knows it well that while challenging his discharge or termination, an employee makes a general prayer that he should be taken back on duty with full back wages and all other consequential benefits.

No doubt, the principles of natural justice ordain that if a workman has been wrongly, disproportionately or illegally punished, he should be duly compensated. It is pertinent to mention here that as and when a workman challenges his dismissal, he demands reinstatement with full back wages till the award is passed by the adjudicator. Every worker invariably pleads and states in evidence that after he has been rendered unemployed, he could not find any job. On this assertion itself, the burden of proof shifts upon the employer to prove the gainful employment of the workman, as held by the Supreme Court3. This principle of onus of proof, as laid down the Apex Court, is being followed by the adjudicators and the High Courts. In 2003 itself, the Madhya Pradesh4 and Punjab & Haryana High Courts5 like other High Courts, Labour Courts and Industrial Tribunals have reiterated that the burden of proof is upon the employer to establish gainful employment of the workman during pendency of adjudication proceedings.

The workman's logic is that he should not be allowed to suffer for no fault of his own. But it is not as simple a matter as it appears to be. On the one side, if untrained and obstinate management commits mistakes, the workers also do not lag behind. No party can claim to be lily white.

It is also a common knowledge that ours is a litigation-loving society. That is why our courts are always cramped and crowded. On an average, it takes nearly eight to ten years to get a case adjudicated notwithstanding that the proviso to sub-s.(2A) S.10 of the Industrial Disputes Act, 1947 provides that where an industrial dispute as referred for adjudication is connected with an individual workman, the period of adjudication should not exceed three months. If the award is challenged in the higher Courts, then it takes another five to fifteen years. Even during pendency of such disputes, the employer has to pay last drawn full wages every month to the concerned workman besides depositing of the awarded amount as per S.17B of the Industrial Disputes Act.

While claiming full back wages, the provision of the law is that the employee must not be in 'gainful employment'. Now the million dollar question is, how can anybody survive in this world for years together without any gainful earnings? Can anybody have sufficient resources at his command that without doing any work he will carry on his dispute in the Courts? Litigation also requires money. Therefore, a workman will not have to earn money only to keep his hearths burning but also to meet out the expenses on litigation.

Many a time it has been observed that most of the workmen fight their cases in courts on the one side and on the other engage themselves in lucrative business activities. There are innumerable instances where workers, being thrown out of job for their misconducts, have rolled in money and at the same time got awards from the Labour Courts/Industrial Tribunals in their favour notwithstanding that they got back wages as if they have been in the employment with the management whereas double employment is prohibited in all the Shops & Establishments Acts of the States and the Factories Act. Lady luck smiles on them from all sides.

Knowing fully well that a workman is not only gainfully employed but he is in a position to provide employment to others, the employers or for that matter even courts cannot do anything for want of any conclusive and clinching proof. Here, it must be noted that the burden of proof about the gainful employment of a workman is on the management and not vice-versa. Simply stating that he is unemployed will shift the burden upon the management to prove the' 'gainful employment' of the workman. Some detective agencies have been rendering such services to find out the gainful employment of the workmen and the employers have to pay them through nose but results are rarely positive since workmen hardly leave any apparent proof of their gainful employment and sometimes even change their names and receive the remuneration in the name of someone else. Such workers become adept in playing the game of hide and seek. It is not for the workman to prove that he has remained unemployed for so many years. It is also not for him to prove that he has lived in penury, as repeatedly held by the Supreme Court and High Courts6.

This lacunae has often been misused and abused by cunning and wily workmen actively supported and prodded by the trade unions. But at the same time it must also be mentioned here that this provision has done great damage to some workmen also because they could not prove themselves smarter than their managements. When exposed, they have to face humiliation and humble pie. In fact, with passage of time, they become interested only in receiving back wages and not in their reinstatement.

So, there are two facets of this provision of the law. One, which is twisted by unscrupulous people in their own favour and the other one is that a gentle and not so cunning workman has to suffer. For instance in one case, the Bombay High Court has observed that the Labour Laws are not meant to harass the employers but to get injustice undone. Hence, this machinery cannot be exploited to extract more money from the employers in an unjust way. It has been very clear from the conduct of the workman that he is not interested in reinstatement. And since he was offered reinstatement in 1992 by the employer, he will not be entitled to get any wages from the date of that offer which was not accepted by the workman7. In another case, the Punjab & Haryana High Court has held that the Industrial Disputes Act helps the needy and not the greedy. The facts of the case were that the workman has admitted that he was working with his father in the Northern Exchange at Chandigarh. He has stated, in his evidence, that his father is a member of the Exchange. On perusal of the file and after hearing the parties, it was found that the petitioner has not been interested in the job and that he actually wanted to garb the arrears of salary on one pretext or the other. Also, as far back as September 6, 1995, the employer had filed a detailed reply to the workman's demand notice before the Assistant Labour Commissioner. In this reply, it has been inter alia, pointed out that the petitioner had raised the demand after more than one and a quarter years, as he was really not interested in the job. While rejecting his claim, the Court held that in fact, "he is gainfully employed in his exchange business. Even otherwise, a qualified person, holding Master's Degree in Commerce, cannot remain unemployed at a place like Chandigarh."8

There are many cases where the workmen are not interested to join duties despite offers by the employers but pursue their cases as if their services are wrongly terminated. Their aim is to extract money from the employers. Reference is made to one case where the workman alleged that his services have been illegally terminated but the employer rebutted his plea. Notwithstanding that the Labour Court granted 50% back wages on his reinstatement. In a writ petition filed by the employer the Bombay High Court held that awarding 50% back-wages by the Labour Court on reinstatement of a workman, who has persistently refused to resume duties despite repeated offers by the management and even ignoring the advice of the Conciliation Officer to resume work, will not be justified and as such the High Court thus modified the award of the back-wages, as granted by the Labour Court9.' The High Court has relied upon its earlier judgment wherein the concerned workman has declined to accept the unconditional offer of the management to resume his duties. While denying the back wages on reinstatement their Lordships observed that "it is not disputed that the offer of reinstatement was unconditional, what was contested was the acceptance of a smaller amount, perhaps, out of the back wages. Nothing prevented the first respondent from accepting reinstatement and containing to buttress his claim for back wages before the Competent Court."10

The above views are the glaring examples of the inherent flaws of the law. This needs to be changed for the advantage of both; employees and employers. If the law is made simple; so that the delinquent employee can be easily got rid of, after paying reasonable compensation, then no party will try to take advantage of the complexities of the court procedures. At the same time, innocent workmen will be saved from a great deal of sufferings and hardships.

The provision of 'gainful employment' must also be dispensed with. No skilled, semi-skilled or even unskilled workman can remain unemployed provided he is interested to work. Therefore, a workman should be allowed to work somewhere but if he wins a case, some amount of lump sum compensation should be paid to him irrespective of whether he was gainfully employed or unemployed. For instance, an employee challenged his termination order dated 7.12.1983 and the Delhi High Court in an interim order dated 5.3.2000 directed his reinstatement which was challenged by the Company. The Supreme Court modified the order of the High Court in holding that compensation in lieu of reinstatement with back wages would be appropriate relief to the employee more so when he has lost the confidence of management11. This will save both the parties from harassment and 'hide and seek game for concealment of facts.

All said and done, if the case of dismissal or discharge is adjudicated upon, a point must be taken into consideration that anybody who has committed wrong must be punished as per the theory of 'ubi jus ibi remedium' .If the management has committed irregularity or illegality, he must suffer the consequences but it should not be in the shape of awarding backwages to the workmen on his reinstatement because that leaves more questions than answers to the problems that have beset the industrial relationship. The change in law can be brought about by the Legislature but a lot can be done by the judicial pronouncements. In this context, the role of labour courts has to be proactive to have the conducive atmosphere for industrialisation.

______________________________________________________________________

1. Ram Ashrey Singh & Anr. v. Ram Bux Singh & Ors. (2003 LLR 415 (SC)).

2. M.P. State Electricity Board v. Smt. Jarina Bee (2003 LLR 848).

3. Hindustan Tin Works (Pvt.) Ltd. v. The Employees of Hindustan Tin Works (Pvt.) Ltd. & Ors. (AIR1979SC7'5).

4. Sachiv, Krishi Upaj Mandi Samiti Anjad (Barwani) v. Shobha Barge (2003 LLR 462 (MP HC)), Sachiv, Krishi Upaj Mandi Samiti, Anjad (Barwani) v. Kalyan Singh & Anr. (2003 LLR 489 (MPHQ)).

5. Angrez Singh v. State of Punjab & Anr. (2003 LLR 794 (P & H HC)).

6. Jati Pal Singh v. Industrial Tribunal No.5 at Meerut and Ors. (1996 LLR 1082 (All. HC)), Hindustan Tin Works v. Its Employees (AIR 1979 SC 75; M.P. State Co-op. Marketing Federation Ltd., Bhopal v. Presiding Officer, LabourCourt, Raipur & Anr. (1996 LLR 656 (MPHC).

7. M/s. Purafil Engineers, Pune v. Shaikh Anwar Abdul Rahman (2000 LLR 268 (Bom. HC)).

8. MukeshKhannav. Chandigarh Administration, Chandigarh & Anr. (2000 LLR 168 (P & H HC).

9. R.K. Kitchen Equipments, Mumbai v. Majid Yusuf Hurape & Ors. (2003 LLR920 (Bom. HC)).

10. Kala Silk Factory v. Phankoo Bakas Yadav & Ors. (1992 LLR 107 (Bom. HC)).

11. Indian Railway Construction Company Ltd. v. Ajay Kumar (2003 LLR 337 (SC)).

Far Reaching Effect of S.C. Verdict : Unions Must Look Before Leap

(By H.L. Kumar, Advocate)

The Supreme Court's August 6,2003 judgment in T.K. Rangarajan versus Government of Tamil Nadu & Ors. (2003 (3) KLT 86 (SC) = 2003 LLR 863) is bound to be a turning point for the country as a whole. The epoch making judgment says among other things that government employees have neither fundamental, statutory, moral or equitable right to go on strike. As expected the judgment has stirred the hornets nest. All the trade unions and almost all political parties, the controller of these unions, have sharply reacted against the judgment. They have got a boost in the statement of the Attorney General of India, Soli Sorabjee, who has characterised the Supreme Court verdict as 'uncalled for' and 'beyond comprehension' and has pointed out that the right of collective bargaining, including the right to strike was an invaluable entitlement of workers and employees won through years of toil and struggle. He has further said that could be 'horrendous situations in which the employees have no effective mechanism for redressal of their grievances and are left with no option but to resort to strike'. While presiding over a seminar of United Lawyers Association, he reiterated that "this judgment could have been appreciated in the emergency period between 1975 and 1977".

Nonetheless, overwhelmingly large number of people across the country have heaved a sigh of relief and found a glimmer of hope in this judgment of the Supreme Court. People in general have become sick of the strikes particularly in those sectors which are considered to be 'essential'. Anybody following the track of employees agitation will vouchsafe that the right to strike has rightly been diluted. The employees have no right to hold the State and the average citizen to ransom. For decades government employees have been a law unto themselves and rightly have the reputation of being arrogant, lethargic, corrupt and totally unaccountable, backed by a guarantee of lifetime employment. The verdict will certainly inject a dose of caution in employees' psyche.

Think of a situation that prevailed only two years back in Uttar Pradesh. Hydro Electric employees held the State to ransom for nearly 10 days by resorting to en mass strike. Factories came to grinding halt, standing crops withered for want of irrigation because there was no electricity. A poor State was forced to suffer the damage worth thousands of crores of rupees. Take another example: Doctors in hospitals go on strike at the drop of hat showing utter insensivity to the pains and sufferings of patients and this is not rare, in fact, this often happens. We generally see that sometimes bank employees are on the strike, sometimes university teachers and employees are on the strike and sometimes pilots of airlines are on the strike not to say of the strikes in the public sector undertakings and other government offices.

No doubt, the strike was supposed to be used in the last weapon in the rarest of the rare cases. But, of late, it has been used as the reckless weapon. Needless to say that government employees form a very small percentage of the nation's workforce, but they enjoy privileges and perks that are not available to their counterparts in the private sector.

Now is the time when trade unions and political parties must think that the breeze of change is sweeping across the globe. India cannot remain an isolated country and pathetically lag behind the countries that are surging forward with accelerated pace of growth.

Historical Background

Trade unionism is an outcome of the factory system. With the introduction of the modern factory system personal relationship between employer and employee disappeared and has given rise to many social and economic evils which made it imperative on the part of the workers to devise on effective means to contract employers to bargain with them.

Labour movement in India is about 150 years old, since it may be traced from 1860s. Early years of movement were led by philanthropists and social reformers, who organised workers and protected them against inhuman working conditions. The first known strike in India was organised by Dinabandhu Gupta, a dramatist and social reformer of Bengal to protest against the hardship of the cultivators and the plantation workers. The government thereupon appointed an Indigo Commission. In 1875 Sarobji Shapuri in Bombay made a protest against the poor working conditions of workers at that time.

In India the period between 1918-1924 can perhaps be best described as the era of formation of modern trade unionism, when the deteriorating economic conditions of workers resulted in strike. The wages of workers were increased but it could not keep pace with the soaring prices of commodities. Leaders like Mahatma Gandhi also took interest in improving the deplorable condition of workers. Later on, all the political parties developed their own trade union wings.

Change is needed

There is no doubt that Trade Unions fought valiant battles, made great sacrifices to secure economic justice for poor, ill treated workers. They succeeded in making the organised workers prosperous. Now the world has changed beyond recognition. But the trade unions refuse to change their attitude and that is what is the cause of their undoing. Recently an article published in a business daily has compared the trade unions with that of the Henry Ford's Model T Car. For years, the Model T was the best selling car in the U.S. After some years, customers became more prosperous, and wanted something better. Though the market changed, Henry Ford would not, and drove his company almost to the verge of bankruptcy by not allowing a model change for almost 20 years. Though late, the Hindustan Motors have to come with a new version of Ambassador car which remained most favourite choice for bureaucrats and ministers in India for over five decades. Likewise although capitalists have changed, trade unions have not. Trade union leaders cling to same philosophy. Oblivious of the fact that the involvement of the workers in the Trade Unions is dwindling with every passing year, Trade Unions still cling to the same philosophy and strategy that they first devised to challenge primitive capitalists.

Present day trade unions can be faulted on three grounds. One, they have forgotten their roots to serve the poor; two, they have not been adaptable; three, they often demand something for nothing in return. Meanwhile, capitalism has modernised so well that free markets have become the latest fashion. Thus, trade unions have lost three ways; one, the loss of the moral high ground to social activists due to the neglect of the poor; two the loss of the political high ground due to shrinkage in membership, and three, the loss of the intellectual high ground against capitalists due to outdated strategies.

In fact, trade unions need an 'enemy' to survive. Traditionally, capitalists have been the enemy. Now it is difficult to cast a modern firm, which pays handsome wages, offers job security, and excellent career opportunities too, in the role of villain. The Trade unions are mainly responsible for not creating enough jobs because today five percent wages can be earned by only five per cent of the labour force. If the objective is to raise employment in the organised sector to 20 per cent of the wages or have to be brought down from the top 5 per cent level to the top 20 per cent, this is not possible without trade unions. By demanding excessive wages, trade unions have not only shrunk job growth but have also reduced the numbers they can organise. In the normal course, trade union membership will shrink where wages rise faster than the growth rate of the economy.

Fifty years ago, socialism and trade unions were at the zenith of their power and prestige. However, this heady success of socialism did not last. Within 30 years, the Berlin Wall collapsed, and the Soviet Union broke into pieces. The miners strike in the UK, and the textile strike in India were put down without difficulty for want of public support. The life-sty le of trade union leaders has become more lavish during the last fifty years. Trade unionism has led to sloth, lethargy, un-productivity and indiscipline. Locking up the horns with Managements on even flimsy grounds has given the trade unions respectability of militancy. But overall, the movements of the trade unions have so far not been able to create conductive environment for the general economic health of the country.

The recent strike of nearly twelve lakh employees in Tamil Nadu bears ample testimony to the fact that the trade unions are still living in the fossilized era of the so-called militancy which has caused more harm to the society than any other factor by calling upon strikes even of very flimsy grounds. Although the Supreme Court has prevailed upon the State Government to Tamil Nadu to gracefully reinstate those employees who have been dismissed on a condition that they will submit an apology and an undertaking that they would not strike or indulge in 'similar activities' in future.

This judgment would have far reaching effect particularly in the case of government and public sector units employees. The private sector cannot remain unaffected with the judgment. Naturally the role of trade unions has been severely reduced as these employees will have to resolve disputes through statutory machinery eg. conciliations, tribunals or courts.

Hopefully, the Central Government, which is fragile one without doubt, would not succumb to the pressure of the unions and political parties to undo or dilute the effects of the judgment. Trade Unions must also took for new ideas to face the challenges of the knowledge economy of the industry and the country as well.

Heard Both Sides

(By T.P. Kelu Nambiar, B.A. M.L.)

The Judge, in black, sober robes, entered, sidestepped by the mace-bearer; and nodded, disgustingly though, as he tried to make himself comfortable in a chair designed more for effect as a seat of justice, than for comfort for the man dispensing it. There was a deep line cut down from the side of the Judge's mouth, an ineradicable part of him, formed by a conscious effort to gain gravity and authority. There was a dignified authority in the poise of his head and the angle of his physical attitude. How very different the Judge looked on the Bench; much more desiccated on the Bench than in real life.

"Yes", the Judge grunted, thinking big and acting fast, with a nod of sovereign to serf.

The Court Officer called;

"Item No.1, O.P. No............of.............."

A middle-aged senior-looking counsel, possibly a Judge in waiting, stood up, hitched his gown around him and arranged his notes on the lectern before him. And, before the counsel could open his mouth, the Judge, eyes Fixed on his notes, muttered: "Exhibit P3"; and summoned the short-hand writer; and dictated, in toned down voice, audible only by straining the ears, and cupping the pinna:

"Petitioner is aggrieved by Exhibit P2 order transferring him from..........to...............Against Ext. P2, he has made Ext. P3 representation to the 2nd respondent." "Next paragraph".

Heard both sides. The 2nd respondent is directed to consider and dispose of Ext. P3 as expeditiously as possible; at any rate, within a period of two months from the date of receipt of a copy of this judgment". The case was over and out.

The Judge said: "Next"; and observed a dignified reticence. The counsel pretended to be at peace with himself; and lapsed into helpless acquiescence, accepting the mercy and the charity. The Court officer called: "Item No.2 : O.P. No............of.............".

The above 'first information report' shows that nobody was heard. Even the pronouncement was hardly audible. Everybody reacted with a perplexed silence on the brilliant advocacy. Such things happen oftener and oftener, at times in series even. Sometimes the case has yet to be argued but the decision is almost in the bag. It all ended before it was begun. Both sides could claim victory of sorts, heads bowed and body bent, without being heard; and could be looking good for more. The legal profession seems to be injured from shoulder to foot.

Tailpiece: Subko Sanmathi De Bhagwan":

Mahatma Gandhi.

Blanket Ban on Strikes By Labour - A Judicial Excess?

(By Justice V.R. Krishna Iyer)

A serendipitous pronouncement by a Division Bench of the Supreme Court declaring is as it does, regarded by critics as a curial aberration, a broad-spectrum ban on Labour's right to strike without investigating the grave grievances of the employees, over a hundred thousand strong, which the State Government, in alleged intransigence, ignored, leading to the menacingly militant lightning strike. The Court, in its wisdom, disposed of the matter without discharging its adjudicatory function of examining the central issue under challenge viz., the vires of the bizarre, blitz. Ordinance dismissing into the streets, with Draconian severity and stunning celerity, the lakh and odd staff members, sans enquiry under Art.311, sans chance to make representations. The Court, however, was eloquent about the disruptive, illegal, iniquitous, anti-social and unconstitutional dimensions of strikes generally which the Bench felt, held the public to ransom. In an impassioned purple passage, the learned Judge observed:

Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakhs employees go on strike enmasse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams which ultimately affect their whole career. In case of strike by Doctors, innocent patients suffer, in case of strike by employees of transport services, entire movement of the society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike.

This is powerful prose but is it legal hermeneutics or jural exegetics carrying judicial authority, or hardly anything more than an emphatic expression of chaos and distress caused by strikes, a view which many may share because of the indiscriminate infliction of social disruption by negligible, irresponsible and disorderly elements unaccountable to anyone and measured by the anarchy they generate. Indeed, the irrational frequency and impertinent frivolity of intimidatory strikes are self-defeating operations which sound trade unionism never sponsors. But are all strikes illegal, immoral, unjust or liable to be suppressed by State authoritarianism, employer reprisal or judicial allergy by angry negation of writ relief? My personal regard for the two Judges on the Rangarajan Bench and the institutional reverence for the Supreme Court, the hallowed home of the human rights guarantee, social justice, jurisprudential creativity and curial remediation (of which I was a humble member long ago) persuades me to critique respectfully but ratiocinatively the Rangarajan ruling which seems to hold all strikes as productive of havoc in a democratic society and bete noire and menace to public interest. To critique is not to carp but to correctively comment in good faith. Trade unions are a legitimate, lawful instrument of the working class and strikes, under necessitous circumstances, are a strategic weapon which has legal sanction under just conditions.

Lord Atkin, in one of his classic judgments, observed what every member of the judiciary in the Commonwealth and elsewhere will do well to remember:

Whether the authority and position of an individual Judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercise the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way; the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken , comments of ordinary men. (Judges P-114)

After all, Judge Jerome Frank of the U.S. Court of Appeal sensibly explained:

In a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions........The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts. (Judges P-205)

The overwhelming majority of our Judges do a difficult job fairly well, commanding confidence of the people nevertheless, as Judge Cardozo elegantly observed, in his book The Nature of the Judicial Process, social philosophy does not pass the judges by. Unwitting infiltration of class bias may creep into their overt impartiality. Professor J.A.G. Griffith, in his book The Politics of the Judiciary, gave reasons to hold that Judges, being but human, may not be immune to class bias, never intentional but subconscious in their surrender to partiality. He quotes Winston Churchill whom I reproduce instructively:

The Courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt biased. (Hon. Members: 'No, no', 'Withdraw' and interruption) The Secretary of Slate for the Home Department (Mr. W.S. Churchill) on the second reading of the Trade Unions (No. 2) Bill, (1911 (26) H.C. Deb. Col. 1022) (The Politics of the Judiciary P. 173).

Lord Justice Scrutton made a similar point:

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says 'Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?' It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.

Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on 18 November, 1920 (1 Cambridge Law Journal P. 8). (The Politics of the Judiciary P. 173)

Does it ring a bell in the bosoms of Indian brethren on the high bench? Our Constitution and Court have a vision which the Crown and Law Britannia do not possess.

Did not Lord Atkin in Liversidge v. Anderson hold the House of Lords: 'In this case, I have listened to arguments which might have been addressed acceptably to the court of King's Bench in the times of Charles-1'. Therefore, arguments at the Bar sometimes condition the conclusions of the Bench and public reaction and jurists' evaluation may be reflected in a reconsideration of the law laid down in a decided case. Law never stand still. It is in this liberal spirit and with a constructive purpose that I 'wash in acid' the ratio in Rangarajan and the anti-strike dicta of the Bench,

With due deference, I dissent from the macro-negative proposition based on broad assumption and expressed in paragraph twelve of the judgment. 'Now coming to the question of right to strike, whether Fundamental Statutory Equitable. Moral Right - in our view, no such right exists with the Government employees'. The Court's dicta as pointed out in a passage earlier in this paper, have gone beyond Government servants and condemned strikes as unjustified 'on any equitable ground'. In a mood of benignant philosophy, the court counsels Labour on its patriotic duty.

In the prevailing situation, apart from being conscious of rights, we have to be fully av.are of our duties, responsibilities and effective methods for discharging the same. For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy even though they are Government employees, they are part and parcel of governing body and owe duty to the Society. (Para. 21)

This moral message, with a pulpit touch, reads like a judicial addition to Jesus' Ten Commandments. This hortative mantra is a spiritual mandate that workers of the world unite; when you have demands to gain from Government or other employer, work harder, produce more and win the Management's heart! No doubt, our country will be transformed if ministers travel less and work more, if Secretaries visit Delhi less and dispose of files more without paper-logging, if public offices slumber less and devote to duty more, if judges hear with more business - like thoroughness, bring down the appalling backlog of dockets and pronounce judgments to the point without prolonged procrastination. Indian Judges have a tough job flooded by escalating litigation and medieval methodology.

In this very case, having tactfully and gracefully terminated the dismissal order using the good offices of K.K. Venugopal, a creative, compassionate counsel, the dubious incursion into ambiguous Labour Law was perhaps obiter and superogatory. What did counsel, a battery of them, all eminent, do in countering the harsh criticism of strikes? The judgment is silent about their submissions on 'strike jurisprudence'. With curial cynicism, working class leaders and labour lawyers may pardonably be pejorative against his jurisprudence which may be more at home in President Reagan's country and bring solace to Super-Conservative Mrs. Thatcher and may be to multi-national corporations (MNCs) who are allergic to the presence of labour as menace creating unrest.

Our Judges on the high bench are aware not only that India is a socialist Republic but that several provisions of Part IV of the Constitution like Arts.41 to 43A, which are 'fundamental in the governance of the country' have welfare of workers at heart. Indeed, the learned Judges persuaded the Government to take the dismissed workers back as a measure of urgent relief. That shows the concern of the courts for employees. What is hurtful to labour jurisprudence is the castigation of all strikes as vicious. Were we colonial, perhaps the conspiracy theory of strikes might have passed unquestioned. Not so now in Gandhi country. Why, in England of today, trade Union law has nullified the view that strikes are conspiracies. There are situations where the Management is unreasonably recalcitrant and turns down just claims of workers. An observation by Lord Denning, in a dissenting judgment, is relevant. I excerpt a part:

Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority - at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. (The politics of the Judiciary P-146)

Freedom of speech and freedom of association are not mere abstractions nor purposeless inanities. Collective action is implicit in these basic freedoms. In express terms, there is no freedom to strike writ into the Constitution. But collective bargaining for legitimate causes is best served by a creative combination of speech and association, of course, without breach of law and order or transgression of other people's human rights. Once this perspective, sanctioned by constitutional initiative, is correctly and curatively interpreted, industrial jurisprudence becomes a process where both managements and workers have right. When claims are justly made based on the contribution of labour to the progressive profit making capacity of the Industry an arbitrary refusal even to discuss may lead to tension which may mount to the point of peaceful, though militant expression by collective withdrawal from work, otherwise called strike. There is more to strengthen the demand than to destroy the industry or to disturb the peace of the community. Strikes are not a noxious novelty of Indian Trade Unions, but have been in every country where industrialisation has been a part of organized production. Those who are familiar with the International Labour Organisation are not jittery about strikes.

A profusion of citations may be avoided by a reference to B.R. Singh's case ((1989) SCC 710) where Justice Ahamedi, speaking for the Bench, observed:

The right to form associations or unions is a fundamental right under Art.I9(1)(c) of the Constitution. S.8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, eg., go-slow, sit-in, work-to rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. (1989) 4 Supreme Court Cases 710 para 15)

The right to strike and the conditions under which it should be exercised are found in the Industrial Disputes Act. Indeed, the Bench, in B.R. Singh's case, was dealing with a strike in a Public Sector organisation and the court, on an overall view of the facts and circumstances of the case, held:

Keeping the interest of the institution in mind and bearing in mind the economic hardships that the labour would suffer if the impugned orders are not set aside, we think that it would be desirable to restore the peace by directing the reinstatement of the workers. (1989) 4 Supreme Court Cases 710 para. 22)

A Bench of seven Judges, in the Bangalore Water Supply and Sewerage Board Case, considered in great detail the meaning of the word Industry. A passage from the leading judgment therein is relevant. 'The International Labour Organization has had occasion to consider freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right'. In para 62 of the ruling, the Court refers to the Corporation of Nagpur case where the Education Department of Government was brought within the conception of Industry. A plethora of case-law relied on in the leading judgment (in the Bangalore Water Supply etc. case) takes the view that even a hospital run by Government is an industry. Industry implies employers and employees demands and denials of claims, strikes and lockouts and industrial adjudication. Therefore, to exclude the idea of strike from the scope of legality is naive.

It is not without significance that in Gujarat Steel Tube case ((1980) 2 SCC 593) the majority of the bench held that it was a fundamental flaw to equate illegal with unjust strikes. A strike may be illegal by a technical violation, but need not be necessarily unjustified. All that I mean is that a token illegality does not make the strike a gross act of injustice. It is surprising that the dubious legality of the Ordinance, extraordinary in its character and timing, had not awakened the court's jurisdiction into considering the constitutionality of the executive legislation affecting a colossal number of public servants. Some day, some bench of the Apex Court may be conscientised into scanning the constitutional jurisprudence of Ordinance Raj.

In the U.S.A. where 'hire and fire' is the rule, strikes are considered economic terrorism by the mega-corporate controllerate of the U.S. economy. Industrial jurisprudence is labour-friendly in India. Our Constitution, with social justice and industrial equity writ large, shapes labour law. Our robed brethren offer a dignified place to labour as almost a partner in the productive process.

Criticisms apart, the judges in the Rangarajan case need a meed of praise for restoring instantly most of the employees who were sacked by an ireful Government, although it baffles me that Government employees for helping themselves back into office has had to apologize and undertake not to strike ever thereafter. This condition is an ad hoc humiliation which I presume the court never meant.

AN AFTERWORD

In the provocative context of the contra-strike pronouncement, the learned Attorney General, with alacrity and authority, repudiated the theory that the right to strike is anathematic. This historic right cannot run riot nor turn berserk but, within socially sensitive bounds and liberal legal limits, has a permissible home in Indian jurisprudence. We are not a totalitarian State nor subject to Corporate Employer authoritarianism.

I never mean a pejorative reflection on the high bench. The learned judges, with a sense of relief after having secured reinstatement for the bulk of employees, relaxed into a censorious frown and presented a certain point of view not integral to the relief sought or the arguments at the bar. The Court is supreme but not infallible. In a Preface of lovely brevity, Justice Kirpal has rightly stated (in a semi-centennial publication by the Supreme Court):

Many a time, the Court has changed its mind and adapted the law and Constitution to suit India's need. If its work has been appreciated, it has not always escaped criticism...............

We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible. (Supreme But Not Infallible)

Rangarajan is a case where the Court, though pro tern final, is perhaps fallible.

Cry the Beloved Land Lord

(By T.M. Rajasekharan, Advocate, Calicut)

Lease out your house or shop room and you are doomed. In Issac Ninan v. State of Kerala, the Kerala High Court struck down the S. 5 of the Kerala Buildings (L & R.C.) Act as ultra vires the Constitution of India and void: 1995 (2) KLT 848. Thus there is no scope for you to get the rent enhanced. The law makers are sleeping over this for more than eight years.

The tenant can keep the rent in arrears as long as he desires, since S.11(2) has virtually become useless. Even if an order of eviction is granted by the courts under S.11(2)(b) after procrastinated litigation, in the three stages, the tenant can get the order vacated by merely paying the rental arrears upto the date of notice, still leaving major chunk of the arrears unpaid. Thus held the Supreme Court in Chinnamma v. Gopalan 1995(2) KLT 755.

The tenant can with perfect immunity adopt all possible and imaginary tactics to delay the proceedings before Rent Controller and finally remain ex-parte. He can then file a petition under R.13(2) to get ex-parte order set aside and continue to avoid payment of rent for many years more.

Let us take the case of Mohemmed Moosa: 2003 (2) KLT1058. This unfortunate land-lord did not receive a single paise towards rent from the year 1986 onwards. He is not likely to get any rent in near future, by going through the judgment of the Division Bench. The revisional powers vested in the High Court under S.20 of the Act are wider than those under S.115 CPC as held by the Supreme Court in Rai Chand Jain v. Chandra Kantha Kohsla - AIR 1991 SC 744. Further, even subsequent events which have material bearing on the landlord's right to evict can also be considered by the High Court (AIR 1975 SC 1409). In the instant case, here is a tenant who has successfully avoided payment of rent for about 17 years. Surely the High Court ought to have directed the tenant to pay the admitted arrears of rent instead of allowing him to take shelter under highly technical grounds of R.13(3). With great respect I would like to state that hyper technical interpretation of R.13(3), overlooking the spirit and purpose of S.12 of the Act, should have been avoided by the High Court. In other words, 2003 (2) KLT 1058 needs urgent reconsideration.