INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 2 ISSUE 5

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1 RIGHT TO JUST AND HUMANE WORKING CONDITIONS *Akanksha Moharir 1 INTRODUCTION What is justice under the labour law or what is the humane working conditions prescribed under it is the biggest question. Since the ancient times labour class has been down trodden and deprived of the good life by the people of higher class, landlords or by the royal families. Across the globe this problem was common. In India it was very common from the ancient times, in from of caste system lower caste people were always dominated by the higher caste people. Sudras considered below vaishayas, Brahmins and khshtriyas considered higher rank, etc. Ex: Zamindars or Landlords always dominated the farmers working under them. They were of their natural human rights. India got its independence in year 1947 and the Constituent Assembly was formed to write down the Constitution for the free India. Through this Constitution, to feed the starving people and clothe the naked masses and give every Indian fullest opportunity to develop himself according to his capacity. 2 Everyone must have equal rights and no one must be deprived of the natural human rights that have been given us by the nature by birth. 3 The Universal Declaration of Human Rights which was adopted by the United Nations General Assembly on 10 th December 1948 was adopted as the fundamental rights under Part 3 rd of the Constitution. 4 Fundamental rights of the citizens are against the state therefore, provisions are made under the Part 4 th of the Constitution of India. Articles 23 and 24 of the Constitution of India protect the citizen from being exploitated. Right Against Exploitation - Article 23 Prohibition of traffic in human beings and forced labour.ainst the law that is no one can make somebody work without his/ her will at any place. It also restrains from Child Labour that is a human below the age of 14 years cannot be worked at any hazardous industries such cement industry, glass work industries, crackers factories or many other industries which are hazardous for the children under Article 24. To abide this provision law is to be made by the Government; 1 Akanksha Moharir BA.LLB (Hons.) University of Petroleum & Energy Studies, Dehradun, India. 2 G.B. Pai, Labour Law in India, Vol 2, p. 1 3 Id. at 1 4 Id. at 1 1

2 therefore, the Constitution of India provides the direction to make laws that are Directive Principles of States Policy which is stated in Part VI of the Constitution under Article 39 the Government was guided to make laws for the protection of the labours. DEFINITION OF LABOUR UNDER LABOUR LAW Every person employed in an industry-organization is not LABOUR under Labour Laws. There are many exceptions: 1. Any person employed in Supervisory or Managerial capacity. 2. Any person who is taking a salary more than prescribed in that certain Act is not covered under those certain Acts. As in Maternity Benefit Act, a Woman employee is not entitled to get maternity benefit, if her wages exceeds Rs. 6,500/- p.m. Payment of Wages Act is for employee getting wages less than Rs. 1,600/- per month. 3. In many laws, a person is entitled to get benefit even if he exceeds the salary limit but his benefits are limited to the limit prescribed in that Act (For example: payment of Bonus Act a person whose salary exceeds Rs. 5,000/- p.m. is also eligible for bonus but bonus will be paid as he is getting salary of limit prescribed in Act). 4. Many Labour laws have conditions of minimum number of employee in industryorganization for their implementation in that industry organization (For example: Employees State Insurance Act is applicable where 10 or more employees are employed). In brief, most of the Labour Laws are for persons working in lower category which government feels can be exploited easily, so they are to protect them. Many Labour Laws are not applicable on small Industries/Organization. Though there are many laws, which are applicable on establishments employing a single person (For example: Minimum Wages Act) <accessed on 23 rd Feb., >. 2

3 LABOUR LAWS DISCRIPTION Labour laws are cluster of laws made and regulated by the Parliament of India and State Legislatures. In India labour laws covers industries of all types. Different labours are made for different industrial as per the conditions of the industries. There are many laws made for the betterment for the labour group in India, some of them are Maternity Relief Act, Industrial Dispute Act, Contract Labour (Regulation and Abolition) Act 1970 & 1971, The Weekly Holidays Act 1942, Mines Act 1952, Motor Transport Workers Act 1961, Hours of Work, Shifts, Spreadover, Rests and Overtime Beedi & Cigar Workers (Conditions of Employment) Act 1966, Factories Act 1948, Child Labour (Prohibition and Regulation) Act IMPLEMENTAION OF THE LABOUR LAWS Under 246 (4) of the Constitution of India gives powers to both Centre and State to make any laws on labour conditions. Labour laws are enacted by the Parliament of India but are implemented by the State Legislatures through their execution power of implementation. The departments which are regulated by the Central Acts or the employees are known as Central Employees such as Defence, Industries, Mines, Railways, Banks and many more these are regulated under the labour laws by Central Government Labour Department. Those who are employed in the departments run by the State Government are governed by the State Authorities. 6 CONSTITUTIONAL ASPECTS OF JUST AND HUMANE WORKING CONDITIONS The Constitution of India provides right to just and proper humane working conditions for every worker. As it is well stated every citizen of India has right to life with dignity and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law. 7 It is the fundamental rights of every citizen of the country to live life with human dignity and free from exploitation. It also includes the proper working conditions during the employment. As in one of the leading cases of M.K. Sharma and Ors. V. 6 (accessed on 24th Feb., ) 7 The Constitution of India, Art. 21 3

4 Bharat Electronics Limited and Ors, employees filed the writ petition before the Supreme Court of India under Article 32 of the Constitution. Bharat Electronics Limited is public sector undertaking. The company has its factory at Ghaziabad and manufactures electronic components and equipment including integrated circuits, TV picture tubes and sophisticated Radars used by the country's defence establishments. The respondent No. 1 has entered into technical collaboration with a French firm, TCSF. Respondent No. 2 is the competent authority appointed under the Radiation Protection Rules, 1971 framed under the Atomic Energy Act by the Central Government. This petition is confined only to workers who are working in the transmitter assembly room of the factory as they are exposed to the baneful effects of the X-ray radiation. They alleged against the respondent no. 1, which is Bharat Electronics Limited has not been following the rules and no care and attention has been devoted to the safety and protection of the employees in such as sensitive place. The court held that proper working conditions are to be made by the employee and that right to health and medical aid to protect the health of the employees while in service and after the retirement. 8 Under the constitution of India bonded or forced labour has been prohibited and exploitation of the workers. In the leading case of People s Union for the Democratic Rights v. Union of India, popularly known as Asiad Workers case, where non- payment of wages to construction workers was challenged successfully among others, for the violation of Article 23, the Supreme Court, after an elaborate discussion on the background, philosophy and scope of that article, held that the prohibition against traffic in human beings and beggar and other similar forms of forced labour is a general prohibition, total in effects and all pervasive in its range. 9 After the commencement of the Constitution of India the conditions of the workers have been improved and have been made fair, as under the Constitution everyone has the right to live with the dignity and liberty and also to have proper justice. Thus, the Constitution of India provides with that to its entire citizen and the working class whose conditions were miserable as the elite class people made their worsen. Female working in the factories or at any other place must have security. Under Article 21 of the Constitution equal opportunity has to be provided to the female working in any industries. Labour laws are in purview of both the State and Centre 8 AIR 1987 SC AIR 1961 Mani.1 4

5 and have been included in the Concurrent List of the Constitution. Both has power to make laws for the security and welfare of labour, thus the there is one Centre Labour Departments and different States Labour Department. 10 POLICIES ADOPTED BY THE GOVERNMENT FOR JUST AND HUMANE WORKING CONDITIONS OF THE LABOURS As under the Constitution of India right to life that is liberty, equality and dignity was enriched thus, there were many steps taken the Government of India for betterment of the conditions of miserable class of the society that is the labours. The farmers of the Constitution made special provision for the betterment of the labour class. Under the Part 4 th of the Constitution that is the Directive Principles of the State Policy makes the provision for just and humane of work and maternity relief and directs the Government of the State and the Centre to make laws for it. 11 Under the Constitution of India provides with the concurrent list then both the Centre and State have the power to make laws. Some of the policies made by the Government for the betterment of the labour class: 1. Trade Unions: A Trade Union is such as Organisation which is created voluntarily on the basis of collective strength to secure the interest of the workers. 12 The Government has made the laws or the provision for the working of the trade unions for the betterment of the workers in the factories, industries or any department run by the State or the Centre Government. The development of the modern industries gave rise to the trade unions. It can be traced back to the 18 th century which first started in Western countries. Industrial development in India in 19 th century which was on line of Western countries, therefore first trade union was established in 1918 in Madras as Madras Labour Union. After this many trade unions were formed in many different industries across the country. Thus in 10 The Constitution of India, list 3 of schedule of 7 th 11 The Constitution of India Article V.V. Giri 12 Chapter. 1 Trade Unions In India 2002, ( Last seen 27 th Feb., ) 5

6 1926 the Government of India passed the Trade Unions Act and Act gave legal status to the Registered Trade Unions. The Registrars of Trade Unions in different states were empowered to register the Trade Unions in their respective states. The Registered Trade Unions (Workers & Employers) are required to submit annual statutory return to the Registrar regarding their membership general Funds, Sources of Income and Items of Expenditure and details of their assets and liabilities, which in turn submit consolidated return of their state in the prescribed performance to Labour Bureau Non Governmental Organisation (NGO s): The Government of India has established many social welfare organisations for the betterment of the labour class. Human Rights Law Network, National Human Rights Commission and different State Human Rights Law Network. These human rights commission established by the government for the betterment of the human rights and the labour welfare also comes under the human welfare. Thus these help in the welfare of the labours Labour Courts: The Government of India has established the labour courts for betterment of the regulation of labour laws. It is defined under the Section 7 of the Industrial Disputes Act, 1948: (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act. (2) A Labour Court shall consist of one person only to be appointed by the appropriate Government. 14 Sharath Babu & Rashmi Shetty, Social Justice and Labour Jurisprudence Justice V.R. Krishna Iyer s Contribution. 6

7 (3) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless (a) 2[he is, or has been, a Judge of a High Court; or (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or 3[ (d) 4[ ] he has held any judicial office in India for not less than seven years; or (e) 4[ ] he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years. Tribunals. - Section 7(A) (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule 5[and for performing such other functions as may be assigned to them under this Act]. (2) A Tribunal shall consist of one person only to be appointed by the appropriate Government. (3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless (a) he is, or has been, a Judge of a High Court; or (aa) 1[ he has, for a period of not less than three years, been a District Judge or an Additional District Judge; 2[ xxx] 2[ (4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it. National Tribunals. - Section 7 (B) (1) The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that 7

8 industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes. (2) A National Tribunal shall consist of one person only to be appointed by the Central Government. (3) A person shall not be qualified for appointment as the presiding officer of a National Tribunal 3[ unless he is, or has been, a Judge of a High Court]. (4) The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it. Section 7C. Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals.- No person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal, if-- (a) he is not an independent person; or (b) he has attained the age of sixty- five years.] 15 Thus, we can say that the Constitution of India has deeply expressed a concern for the welfare of the workers and has provided in Article 42 that State shall make provision for securing just and humane working conditions of work. It should be done through ensuring legislation or the economic organisation. 15 Industrial Disputes Act,

9 CONTRIBUTION OF LEGISLATION IN THE DEVELOPMENT OF THE LABOUR LAWS The Parliament of India according to the Part 4 th of the Constitution is guided to make the provisions for the ensuring security, health and prosperity of the workers. Therefore, the Government of India has made legislation for labour welfare and the security of the labour is at most important for the development of the country. There are many Acts have been enacted by the Government of India. Just after the freedom of India the first legislation was Industrial Dispute Act 1948 and after this many legislation came after one by one. These marked as the development of labour laws in India. Some of the legislation made for the betterment of the conditions of the workers: 1. Industrial Dispute Act, 1948: Industrial Dispute Act 1948 was brought by the legislature. Industrial disputes are any dispute or difference between employers and employers, between employers and workman, between workman and workman, which is connected with the employment or non employment or with the conditions of labour, of any person. The historical review of the Industrial Dispute Act: a. The first enactment was first brought in Employers and Workmen s (Disputes) Act, 1860 weighed much against the workers and was replaced. b. Trade disputes Act, 1929 contained special provisions regarding strikes in public utility services and general strikes affecting the community as a whole. Its main purpose, however, was to provide a conciliation machinery to bring about peaceful settlement of industrial disputes. In this regard the Whitely Commission made the perceptive observation that the attempt to deal with unrest must begin rather with the creation of an atmosphere unfavourable to disputes than with machinery for their settlement. c. The Industrial Disputes Act, 1948 was passed to remove certain shortcomings found in the working of the Trade Disputes Act, The Act came into force on the first day of April It introduced Works Committees and Industrial Tribunals, new institutions for the prevention and settlement of industrial disputes. It seeks to reorient the administration of the conciliation machinery. Under the Act conciliation has been 9

10 made compulsory in all disputes in public utility services and optional in all other industrial establishments. The objective behind the Act: (1) To secure the industrial peace, a. By preventing and settling Industrial disputes between the employers and workmen. b. By securing and preserving amity and good relations between the employers and workmen through an internal Works Committee and c. By promoting good relations through an extra machinery of conciliation. Courts of Inquiry, Labour Courts, Industrial Tribunals and National Tribunals. (2) To ameliorate the condition of workmen in industry: a. By redressal of grievances of workmen through a statutory machinery and b. By providing job security. Objectives behind the Industrial Dispute Act, 1948 (1) To maintain harmony and good relations among the workmen, workmen and employers. (2) To prevent from the illegal strikes and lock-outs. (3) To give relief to the workers in case of lay-off, retrenchment and closure of undertakings. (4) To investigate and to settle the dispute relating to the industries between the workmen and the employers, among the workers themselves. Federation of Trade Unions or Association of Employers or a Federation of Association of Employers. (5) Bargaining collectively Maternity Relief: Motherhood is the gift for every woman in this world, therefore no one can deny her rest and reliefs. Thus, the legislature has provided with the maternity relief of the woman working in any organisation. Maternity benefits means leave is provided to woman for 16 Industrial Disputes Act,

11 the delivery of child, still-birth, miscarriage which is not punishable under the Indian Penal Code. The woman who is not the maternity leave is on paid leave that is she withdraws the same salary before her leave. 17 The Maternity Benefits Act, 1961 to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for the maternity benefit and certain other benefit. The rights conferred by women under the Act are: 1. Right to payment: The woman who is in maternity leave is entitled for the average payment. No employee can deny for the average payment during the maternity leave, the average payment means the payment that woman was getting before her leave maximum for three months. The average payment shall be received by her for six weeks before the delivery and six weeks after the delivery. A medical bonus if or the reimbursement of the medical expenses acquired at the time of delivery, medical termination, miscarriage or still-birth. An additional leave pay leave may be granted if any complications occur due to the pregnancy, delivery, premature birth or miscarriage. If a woman undergoes an unfortunate miscarriage then she is entitled for the paid leave for six weeks from the date of miscarriage. According to Sec. 7 of the Maternity Benefit Act, 1961, if woman dies before receiving her maternity benefit amounts, the employer is liable for the payment to her legal representative whom she has nominated according to sub section 5 of the Act. According to Sec.8 of the Act, every woman entitled for the maternity benefits under the Act shall also be entitled for a medical bonus of two hundred and fifty rupees, if no pre-natal confinement and post-natal care is provided for the employer free of charge. If woman wants leave after maternity leave she is entitled for the leave that it is paid leave up till the 15 months after delivery. 11

12 2. No dismissal or removal during her maternity leave: No woman would be removed or dismissed during maternity relief by any employer as it is inhumane The Factories Act, 1948 The Factories Act, 1948 is the principal legislation for regulating various aspects relating to safety, health and welfare of workers employed in factories. This Act is a Central enactment with aims at protecting workers employed in factories from industrial and occupational hazards. State Government and Union Territory Administrations frame rules under the Act and enforce provisions of the Act rules through their factory inspectorship. Relevant Provisions Under the Act: 1. By this Act every person who has been appointed by any factory or department has right to have a paid leave during a calendar year, who must have worked for the 240 days. (a) one day for every twenty days worked in the case of adults, and (b) one day for every fifteen days worked in the case of children. 2. According to this Act, the safety of the workers is the most important. Safety which is according to the human conditions that is the person should not employ in the work which may cause him the injury. If the supervisor sees that due some machines or object there will be loss to the workmen than it should be informed and should make arranges for changing it. 3. In a factory where more than 500 workers are working a special medical room with medical consultant should be there. 4. There should be facility of canteens or rest rooms. 18 Ibid

13 Working hours: An adult means who has attended the age eighteen years is entitled for work in a week for forty eight hours and not more than eight in a day. 2. The factory should provide weekly holiday that is first day of the week. If worker is allowed to work on weekly holidays then the person must be entitled for the compensatory holiday s equivalent to the holidays he lost. 3. Shifts are to be decided in case of shift work in the factory. If overtime has been done by the worker than extra payment has to be made. 20 MIGRANT WORKERS: Migrant workers are the workers who go place form one place to another in such of work for their livelihood therefore; they are more vulnerable than any other workers and safer more inhumane working conditions. In India mostly workers are employed in agriculture or in construction work and work in any miserable conditions. Working is not decided but work whole day that sunrise to sunset. In India infrastructure development is required therefore, the workers in the construction is higher. For the betterment the migrant labours the legislature has enacted an Act the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, Under this Act the Government has confirmed the wages above the minimum wages. Also lays down that proper wages at proper should be given and also proper accommodation, medical facilities, clothing and basic needs of any human to live life. The Act provides penalties, providing imprisonment for not fulfilling the provision under the Act. But still workers working under this are deprived of their basic needs as employers show the wrong list which they need to show. The Indian Judiciary occasionally comes to the rescue of migrant labour and makes pronouncements and observations to fill the gap in the justice delivery system. It seems regulatory mechanisms are over stretched, inadequately structured, manpower deficient and resource crunched Factories Act, Ibid

14 CONSTRUCTION WORKERS: There are many workers who are working under construction sector as the infrastructure development in India is required therefore, for constructing building, offices and IT parks the workers in the construction companies require the most. The workers working in these industries are illiterate and come from the agriculture industry proper working conditions to be made for them. As they are mostly migrant workers the provisions for their leaving should also be made. CONCLUSION This research concludes that the Government of India has worked hard for the betterment of underprivileged people in the country. There have been many legislation and provision under the Constitution of India for improving conditions of the labours and workers in the country. As workers or labours are the major factors for the economic development of the country, thus there betterment is at most importance. Through all these legislation there has been development of the labour class, as every coin has two sides in same manner many times under the Trade Unions the rights of the labours are many times neglected by the leaders of the Trade Unions as the tent to see their own interest. Outside leaders come in the Trade Union and mislead the workers as most of the workers are illiterate thus, interpret in things and provision in wrong manner and thus are hindrance in the development of the workers. 14