Domestic Enquiry under Labour LawPrint this

TABLE OF CONTENTS

SERIAL NO. TITLE PAGE NO.

1 TABLE OF CASES 2

2 INTRODUCTION 3

3 RESEARCH METHODOLOGY

5

4 CHAPTER 1 7

5 CHAPTER 2 11

6 CHAPTER 3

8 CONCLUSION 26

9 BIBLIOGRAPHY 27

TABLE OF CASES

1. Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377.

2. Baidhar Das v. The State and Ors, AIR 1970 Ori 320.

3. Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303.

4. Brooke Bond India Ltd. v. Subbaraman, (1961) 2 LLJ 417 (SC).

5. Cipla Ltd v. Ripu Daman Bhanot (1999) 4 SCC 188.

6. CL Subramanyan v. Collector of Customs, Cochin, AIR 1975 SC 951.

7. consumer Education and Research Centre v. UOI, (1995) 3 SCC 42.

8. Crescent Dyes and Chemicals Ltd v. Ram Naresh Triadic, 1993 (66) FLR 537

(SC).

9. Dunlop Rubber Co. (I) Ltd v. Workmen, AIR 1965 SC 1392.

10. Firestone Rubber Co. v. Its workmen,

11. G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308.

12. Kharda & Co. Ltd v. Its Workmen, (1963) 2 LLJ 452.

13. Kraipak v. Union of India, AIR 1970 SC 150.

14. N.Kalindi v. Telco, AIR 1960 SC 914.

15. Nitya Ranjan v. State, AIR 1962 Orissa 78.

16. Pett v. Greyhound Racing Association Ltd., (1968) 2 All E.R. 545.

17. Photographic Co. Ltd v. Saumitra Mohan Kumar, (1984) 1 LLJ 471.

18. T.Muniswami v. State of Mysore, (1963) 3 LLJ 694.

19. The Board of Trustees of the Port of Bombay v. Kumar R. Nadkarni, 1983 (1)

LLJ 1.

INTRODUCTION

“Take away all our money, our great work, our entire establishment, but

leave our discipline and organization, and in a few years I shall have re-

established myelf.”[1]

Discipline, indeed is the very basis of a well organized establishment and the

management must take interest in upholding this. However, the power to

supervise this discipline should not be used as a garb to arbitrarily dismiss or

punish a workman.

Every establishment is expected to maintain Model Standing Orders or

Standard Standing Orders which lay down the bye laws of the industry

including does dealing with misconduct and discipline.

With the growing importance of the basic tenets of human rights and

equality and fairness for all, law has made it necessary for an employer to

work in a just and fair manner manner towards its workers knowing that it is

the weaker party in industrial relations. It for this purpose that courts have

now mandated employers to hold internal enquiries when misconduct or

some other form of indiscipline has occurred in the establishment. These

enquiries mainly give an opportunity to the worker to explain himself and

defend himself from arbitrary punishment if his is innocent.

Further the law mandates that such disciplinary proceedings are very crucial

for a worker who has his livelihood and dignity at stake. Thus it is expected

of employers to carry out these enquiries in accordance with the principles of

natural justice. However, there exists a big controversy here as to the right

of a worker to be represented by an advocate at such enquiries to ensure

smooth and efficacious running of such enquiry. One needs to see whether

such a right is a basic essential of natural justice or whether such a right

would only take away the informal atmosphere of a domestic enquiry. In

order to answer these questions the researcher will take the held of various

judicial pronouncements and other legal dimensions.

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

The aim of this project is to understand what is a domestic enquiry and what

is its status in law. Further researcher will examine that whether such

enquiries must allow the right of representation to a delinquent worker.

RESEARCH QUESTIONS:

What is a domestic enquiry and how did it come about?

What is the importance of such an enquiry and what is the status of such

enquiries?

Can the employer allow the workman the right to be represented by an

advocate in such enquiries?

Is the right of representation a statutory right of the worker and can principles

of natural justice be dispensed with in regard to such a right?

SCOPE AND LIMITATIONS:

The scope of this project is to understand whether a delinquent worker has a

right to be represented by an advocate in domestic enquiries and whether

the principles of natural justice can over ride the bye laws of an

establishment to achieve this purpose.

Due to lack of material on the subject, the researcher has excessively used

the medium of case law to come to certain conclusions in this paper.

METHOD OF WRITING:

The researcher has used both a descriptive and analytical method of writing

in order to understand the issues involved in this subject better. Also the

researcher has taken the help of judicial decisions in reiterating her views on

the subject.

MODE OF CITATION:

A uniform mode of citation has been followed throughout this project.

SOURCES OF DATA :

The researcher has used secondary sources in order to obtain sufficient data

for this project, namely, books, articles and the internet.

CHAPTERISATION:

Chapter 1: This chapter deals with the meaning of a domestic enquiry, how

did it find its place in law and what are the procedures to be followed in such

enquiries.

Chapter 2: This chapter deals with the right of representation as laid down in

law and when can this right be invoked and under what circumstances.

Chapter 3: this chapter is an analysis of the previous two chapters. It deals

with the debate whether a workman has a right of representation in

domestic enquiries and whether the principles of natural justice will be

violated if such a right is not given.

CHAPTER 1

DISCIPLINARY ACTION: AN INTRODUCTION

Background:

Most of Labour Law is judge made law. The Law relating to domestic enquiry

particularly, is mostly judge made. This is further argued by the fact that

there is no statutory provision which lays down that an enquiry must be held

before punishment for misconduct, that principles of natural justice must be

followed in such enquiries, that the tribunal cant interfere with the findings of

the enquiry officer, etc.[2]

What is a domestic enquiry:

An enquiry held by the management against its employees for certain acts of

alleged misconduct is called a “Domestic enquiry”[3]. Domestic enquiry is

when such fact-finding enquiries are conducted in factories, industrial

establishments etc, of a private sector. Such enquiries if carried out against a

Government Servant who is governed by the CCS (CCA) Rules, 1965, it is

known as “Departmental Inquiry.”[4] Today it has become the law that no

punishment for misconduct can be given to an employee without first of all,

proving that act and secondly, without giving him a reasonable opportunity

to defend himself in a proper domestic enquiry.[5]

The purpose and importance of such an enquiry is that in an age of 

economic growth and liberalization, society requires industrial peace so that

production may not be hampered. By providing for such an enquiry a great

deal of arbitrariness and consequential grievance and unrest is avoided.

Following this reasoning, enquiries against temporary workmen must also be

held giving him opportunity to defend himself and cross-examining the

witnesses of the employer, be fore he is punished.[6]

A domestic enquiry is different from a preliminary enquiry. The sole object of

a preliminary enquiry is to find out whether a prima facie case has been

made out against the worker or not. On the other hand, a domestic enquiry

is concerned with determining whether charges leveled against the workers

are established or not. Further, the report of  preliminary enquiry serves the

basis of framing charges against the worker, while in the case of a domestic

enquiry, the report helps determine the nature of punishment to be inflicted

upon the workman who is found guilty.[7]

Lastly, the preliminary enquiry need not confer to any rules and principles,

whereas a  domestic enquiry is subject to the principles of natural justice and

the procedure laid down by the courts in their judicial decisions.[8]

When an enquiry is invoked:

For an enquiry to be initiated there must be a misconduct on the part of the

employee which the employer has complained against.[9] The Model

Standing Orders under the Industrial (Standing Orders) Act, 1946 provides

for disciplinary action for misconduct and gives a list of acts which can be

regarded as misconduct.[10]Further the employee must be in service of the

employer to have an enquiry proceeding against him. Once an employee has

ceased to be in service, the employer cannot call for such enquiry

proceedings against him.[11]

Procedure of Enquiry:

All establishments whether they have Standing or Orders or they follow the

Model Standing Orders must necessarily follow certain procedural formalities

before any punishment is awarded. This is laid down in clause 25 of the

Model Standing orders. Apart from this since there is no set law as regards

disciplinary proceedings, most procedures have been deduced from various

legal judgments. The procedure can be divided into the following steps:

Framing and issuing of a chargesheet;

Enquiry proceedings;

Findings;

Decision;

Service of the Order.

Chargesheet:

Once an employer feels there has been a misconduct and proceeds to carry

out disciplinary action against him, the first thing an employer must do is

issue a charge-sheet to the employee. It is at this point that a domestic

enquiry commences. The object of a charge-sheet stems from the principles

of natural justice that a person charged with an offence should know his guilt

and should get an opportunity to explain himself.[12] After all the formalities

of receiving the charge-sheet is fulfilled the next step is the enquiry

proceeding.

Enquiry Proceeding:

Domestic enquiries do not apply in a situation where the employee admits

the charges leveled against him.[13] Domestic enquiry proceedings are

quasi-judicial in nature. This means they are not totally judicial, and it

describes only a duty cast on the executive body or authority to conform to

norms of judicial procedure in performing some act in exercise of its

executive powers.[14] In such proceedings, the law requires that domestic

tribunals should observe rules of natural justice if they do so, their decision is

not liable to be impeached on the ground that the procedure followed was

not in accordance with that which obtains in a court of law.[15]

In the first step, the explanation given by the workman must be considered.

If this explanation is unsatisfactory, a notice giving the details of the

upcoming enquiry along with the name of the presiding officer will be served

on the worker.[16]

The employee has a right to be represented by his co-worker during the

proceedings, and on the discretion of the employer may also be represented

by the union representative.[17]

Following this there will be examination and cross – examination of

prosecution and defence witnesses and the evidence deduced from this shall

be recorded.[18] The examination of witnesses is done in a rather technical

manner, whereby witnesses are to be examined one by one as in a court of

law, and they should not be allowed to overhear the evidence given by the

previous witness. The signature of the witness should be obtained at the

conclusion of evidence or incase the evidence is being interpreted to the

employee, the signature of such interpreter.[19] At the end, the enquiry

officer/presiding officer should sign the evidence of subsequent witnesses.

The enquiry should be conducted with speed and efficiency. As far as

possible, the enquiry should be concluded in one sitting. However, if the

proceedings protact it may be adjourned to the next convenient date. In any

case, the enquiry should not be postponed for a long period and if it does so

then suitable endorsements must be given with reasons for such delay.

However, keeping in mind the purpose of such enquiries, on should avoid 

delay as it may effect the income of the workman seriously and may hamper

the proper working of the establishment as the management will be involved

in such proceedings.

Findings:

On completion of the enquiry, it is the duty of the enquiry officer to submit a

report[20] containing his findings and the reasons therewith to the

authorized authority to take disciplinary action. Findings without basis or

perverse findings should not be recorded. The findings should be signed by

the enquiry officer. It must be noted that the enquiry officer should not

recommend any punishment or make any other recommendation in his

findings.[21]

Decision:

The higher management such as works manager, general manager or

director shall consider the findings and if the workman seems guilty to them,

they shall award appropriate punishment in accordance with the standing

orders.[22] No punishment can be given on any grounds not stated in a

charge-sheet. This again follows from the basic principles of the criminal

procedure laid down in law.

In awarding punishment, the fundamental principle is that punishment

should be in proportion with the nature and gravity of the punishment.

However, where the standing orders in the establishment provide a

particular type of punishment for a specific act of misconduct, the same shall

be strictly followed.

Service of order:

Any order of punishment is required to be sent expeditiously to the

employee in writing which then completes the proceedings of the enquiry.

The letter should make a reference to the charge-sheet, the enquiry held,

the findings of the enquiry officer, the decision and the date from which the

punishment is to be effective. These procedural aspects will vary in a case

where approval of a conciliation officer, court or tribunal is necessary for

effecting the punishment, as laid down in S.33 of the Industrial Disputes Act.

CHAPTER 2

REPRESENTATION BEFORE THE TRIBUNAL

Previously we have seen the procedural aspects of a domestic enquiry. An

enquiry is mostly carried out on the basis of the rules laid down in the

standing orders. If there are no rules then the principles of natural justice

should be followed and. In any case the enquiry officer should always keep in

mind that the proceeding should be carried out properly without any

arbitrariness and the proceeding being between two unequal parties there

should fair opportunity for both parties.

It is in the light of this that the question of representation arises. Can a

worker demand a representation by a lawyer as a matter of right?

The right to be represented through an advocate or an agent can be

restricted or controlled by statutes, rules, regulations or standing orders.[23]

Further it has often been stated that if Orders did not provide such

representation, that would not in anyway vitiate the proceedings.[24]

Even the Supreme Court on a number of occasions have persisted with the

view that representation is not a matter of right to the employee. In the case

of N.Kalindi v. Telco,[25] the Supreme Court said that one must not forget

that firstly these domestic enquiries are not enquiries in the court of law, and

in such enquiries fairly simple questions of fact as to whether certain acts of

misconduct were committed by a workman or not fall to be considered.

Further straight forward questioning which a person of fair intelligence and

knowledge of conditions prevailing in the Industry will be able to do and will

ordinarily help to elicit the truth. The court also pointed out here that it may

happen that the accused workman will be best suited, and able to cross-

examine the witnesses who have spoken against him and to examine

witnesses in his favour.

This point of view was further reiterated by the Court in Brooke Bond India

Ltd. v. Subbaraman,[26] in this the employer proceeded to hold an enquiry

against two of its workmen, one of whom demanded to be represented at the

enquiry by his counsel and the other by an outsider of his choice. The

enquiry officer refused them such permission, but offered them

representation by a member of the union. Both workmen refused and

withdrew from the enquiry, after which the enquiry was carried out ex-

parte and the management decided to dismiss the workers. On appeal to the

Supreme Court, it was held that the enquiry officer had done everything

which he was required to do under the law and the enquiry carried out by the

manager was regular and there was need of further interference.

Where services of an advocate cannot be dispensed with:

However there are certain circumstances which warrants the appearance of

an advocate and in fact some courts have said, that in such circumstances if

the opportunity is not given to the worker, this would amount to unfair labour

practices and a violation of natural justice. The circumstances are as follows:

Where presenting officer is a lawyer:

In the case of CL Subramanyan v. Collector of Customs, Cochin,[27] a

trained prosecutor of the status of a high police official was appointed as

presentation officer and the request of a delinquent to engage a lawyer of

his choice to represent and defend him was rejected. It must be kept in mind

that the officer was not only a legal practitioner but a trained public

prosecutor. Further in this case the Government service rules gave the right

to the government servant to be represented by a lawyer. Thus here the

denial of the help of a lawyer vitiated the enquiry.

The basic point here is that, the enquiry/presiding officer is a person chosen

by the management, in light of this there already exists a fear that the

enquiry officer might be bias towards the management who appointed him.

In this scenario, if the officer is also a highly qualified legal personnel, he

may proceed with the same technicality as that of a court of law and this

may make it difficult for the workman to follow the proceedings and to put

up a sound defence.

When employer is represented by legally trained prosecuter:

Wherein an enquiry before the domestic tribunal, the delinquent employee is

pitted against a legally trained mind refusal to grant him permission to

appear through an advocate would amount to denial of a reasonable request

and violation of essential principles of natural justice. This was reiterated by

the Court in The Board of Trustees of the Port of Bombay v. Kumar R.

Nadkarni,[28] where it said that

“ apart from the provisions of laws, it is one of the basic principles of natural

justice that the enquiry should be fair and impartial. Even if there is no

provision in the Standing Orders or in law, wherein an enquiry before the

domestic tribunal, the delinquent employee is pitted against a legally trained

mind, if he seeks permission to appear through a legal practitioner the

refusal to grant this request would amount to denial of a reasonable request

to defend himself and the essential principles of natural justice would be

violated.”

Following from the above decision, where the employer nominates his legal

officer and adviser as a presenting-cum-prosecuting officers and the

delinquent worker is put up against such legally trained personnel, it is

essential to allow the delinquent employee to be represented by a legal

practitioner. Further if the rules put no such restrictions then it would be in

the best interest of justice to allow representation.[29]

When provisions made by the service rules:

Where the service rules confer discretion in the enquiry officer or the

employer to permit the employee to be represented by a lawyer, it is

justifiable and could be then examined by the court if the employee did not

get the opportunity to exercise the discretion.[30] One case to make this

situation clear is where the employer nominated a police inspector of the

Anti-corruption Department, who is specially trained in conducting

prosecution, to conduct the enquiry and the right of representation by a

lawyer was denied to the employee, it was held it violated the principles of

natural justice.[31]

In case of a government servant, the disciplinary authority decides whether

it should sanction the right to allow the employee to engage a lawyer, on the

basis of the facts and circumstances.

Presentation Officer having adequate legal knowledge:

The presentation officer need not be a lawyer, for the delinquent to insist on

having an advocate represent him. Its enough if the presenting officer has a

sufficient knowledge of law and has been trained in the techniques of a

disciplinary proceedings. For example, where the presenting officer is a CBI

inspector, this situation is enough to warrant the services of a lawyer.[32]

Other circumstances:

Firstly, when a joint enquiry against two Government servants is being

conducted  and if the department has appointed a presenting officer and if

the co-delinquent had an officer, to defend him, fair play and justice

demands that the enquiry officer should have enquired from the delinquent

employee whether he would like to engage someone to defend him.

Also where the facts are complicated  and the gravity of charges are high

and the employee is not educated or skilled enough to handle such situations

then a lawyer maybe engaged to defend him. In one case because of the

gravity of charges being investigated in the domestic enquiry (fraud and

forgery) and if such charges are tried in a criminal court, the accused would

have a right to be represented, the delinquent was allowed to be

represented by a lawyer.[33]

However courts, have given varying decisions in this regard and in the next

chapter the researcher will decide the need of a lawyer in domestic

proceedings or whether they are a mere nuisance to such internal

proceedings.

As seen above the general principle of the right of representation to be

exercised by the workman depends upon the discretion of the enquiry officer

but such discretion is only to be exercised in peculiar and pressing situations.

As seen above in certain circumstances where it seems that grave injustice

will be done, the enquiry officer may allow the right of representation.

However, this judgment will from case to case as per the circumstances and

nuances involved. Besides this the said right also depends on the standing

orders or service rules. If such a right is not recognized in the standing order,

such refusal does not vitiate a proceeding.[34] A proceeding is vitiated when

a workman is unable to defend himself, either because he is illiterate[35] or

because he is unable to understand the complexities of the case or for other

reasons. However, in all such situations the court does not vitiate

proceedings. If it is seen that though representation was not allowed, yet

there was no hint of bias proceedings or arbitrary action, then such will not

be set aside. Thus we see that there is no precedent set in this respect and

having a fair idea of the existing situation it is left to one, to understand the

best possible solution to this and therefore in the next segment, the

researcher has aimed at analyzing the existing trend. and whether it is fair

and just 

CHAPTER 3

THE RIGHT OF A FAIR AND JUST TRIAL

A Case against representation:

It is well understood that a domestic enquiry is an internal proceeding and

not one in a court of law. Further very simple questions are asked in these

proceedings as the object of this enquiry is only to see whether certain

misconducts were committed by the workman or not. Further in the Telco

case it was argued that the questions are simple enough that a person of fair

intelligence and knowledge of conditions prevailing in the industry would be

able to do.[36]

Further the involvement of lawyers, it is argued will necessarily make the

proceedings more technical and this will detract from the informality of

proceedings proceedings, thereby, impeding smooth and expeditious

settlement.[37] However one cannot blame lawyers for bringing their legal

training and experience to the aid and benefit of their clients as it is well

established that labour disputes necessarily entails two unequal parties.

It is worth mentioning that even under the provisions of the industrial

Disputes Act the appearance of a legal practitioner is totally prohibited in

conciliatory proceedings and restricted as far as adjudication proceedings

go. It must therefore, not be in consonance with the policy to allow an

advocate to participate in purely fact finding proceedings before domestic

tribunal and allowing the proceedings to be influenced by strict rules of

evidence.[38] In this respect, it is further argued that principle of natural

justice would be complied with if the delinquent workman was allowed to be

represented by a co-worker of his choice. However such a situation is not a

viable option. The fight should be between equals and a co-worker may

possess the same disabilities as that of the delinquent workman and may not

have the sufficient qualifications and knowledge.

This then brings us to deeper issues of industrial relations and inequality of

bargaining power of the workmen and how the law and the legislature have

tried to bridge the gap or atleast make amends.

Natural justice in labour laws:

Rules of natural justice are not embodied rules nor can they be elevated to

the position of fundamental rights. In Kraipak v. Union of India,[39] the Court

observed, the aim of rules of natural justice is to secure justice or to put in

negatively to prevent miscarriage of justice. Further these rules of natural

justice can operate only in areas not covered by any law validly made. In

other words they do not supplant the law but supplement.

The point is that if the Courts can read statutory provisions consistently with

the principles of natural justice, then it should do so because it is presumed

that the legislatures and the statutory authorities intend to act in accordance

with the principles of natural justice. However, if a statutory provision, either

specifically or by necessary implication excludes the application of any of the

rules of natural justice then the court cannot ignore the mandate of the

legislature or the statutory authorities.[40]

Thus this case held that quasi-judicial enquiries must be held in good faith,

without bias and not arbitrarily and unreasonably.

Further in one case the court held that though the right to employment is not

a fundamental right, but after employment to a post or office, be it under the

state, its instrumentality, juristic person or private entrepreneur, an

employee must be dealt with as per public element and in public interest

assuring him equality under Art.14 of the Constitution and all concomitant

rights arising from it.[41] Thus proving the need of upholding principles of

natural justice so that everyone person can be treated equally.

Thus keeping these ideas in mind, we shall now embark on a discussion of

the legality and importance of a lawyer representing a delinquent workman

in enquiry proceedings.

Appearance of advocates: A fair principle

Up to this point we have seen that case law and authors have said that a

workman has no right to be represented by an advocate in domestic

enquiries and the opposite view is only an exception culled out in pressing

situations. However with the strengthening of the principles of natural justice

and the agreement of courts that such enquiries are quasi-judicial in nature,

therefore one must necessarily pass judgment in fairness and good faith.

India is a developing country and industrialization is at its peak. However,

though there is growth in one side, the fact remains that the mass of Indian

people are poor and illiterate and most of the workers uneducated and

unskilled. Further though Trade Unions have been formed to strengthen

workers, with the multiplicity of Trade Unions this job becomes impossible as

most of their time is spent in inter union rivalries etc and thus the difficulty

of putting up a strong front before the management. In this background we

see that an employee is at a disadvantageous and unequal position in

industrial relations. Therefore when a situation like a domestic enquiry

comes up, the employee must get help and guidance and opportunity, not

excessively but to a reasonable extent.

A regular worker in an industry has not much skill let alone legal skills. As

seen in the first chapter, a domestic enquiry involves technicality almost

equal to that of a court of law. How is a worker supposed to carry out

examinations and lead evidence, etc. He may not be aware of the formalities

required. In such a background the expertise of an advocate could help in

dealing with the enquiry properly and fairly.

Following this, in the case of Firestone Rubber Co. v. Its workmen[42], the

court held that if a proceeding is set aside by the presiding officer or if the

worker feels there has been injustice in the finding, he may approach the

Labour Court for redressal. At this stage the Court may allow the

management to lead fresh evidence to explain why the proceedings were not

conducted properly. Here we see that the management gets another

opportunity to fix its wrongs, however if a worker had done made a mistake

or had not been able to present his evidence properly he get no second

change. Thus it would be important then to allow the workman to be

represented by a lawyer who would be able to understand the nuances of

the case and ensure a fair trial. Further, once the matter goes to the Labour

Court, there is scope for challenging the award of the Court by the means of

a writ petition and this may lead to a long drawn process, which the

workman may not be able to endure.[43]

In Nitya Ranjan v. State,[44] the court held that though legal assistance is

generally prohibited in domestic enquiry, yet in certain circumstances where

there is complexity in facts, volumes of evidence, the educational

attainments and experience of the delinquent workman etc. And these

factors show that without legal assistance he may not be able to establish

his innocence, then the rule can be broken and the exception of allowing an

advocate be brought in. Infact the court said that in such circumstances,

denial of legal assistance may be equivalent to denial of ‘reasonable

opportunity’ and the entire proceeding can be quashed.

Here again see the assertion of principles of natural justice which demands

fair trial and reasonable opportunity to every person. This was further

reiterated in another court where the charges against the delinquent were of

falsification of accounts, misappropriation of Government money,

acceptance of illegal gratification etc. there were as many as 93 witnesses

examined and a large number of documents presented. In fact the enquiry

went on for three years with three enquiry officers succeeding one another.

In the facts and circumstances of the case it was seen that the disciplinary

authority acted contrary to A.311(2) of the Constitution in denying the

representation of the petitioner by a lawyer at the enquiry and thus deprived

him of the reasonable opportunity granted to a public servant. Thus the

proceedings were vitiated.[45]

Also a counter argument can be leveled against those who argue that since

it is domestic enquiry outsiders should not come and disturb the informal

atmosphere. In fact since it is considered a purely internal matter, care must

always be taken to see that the domestic enquiry is not reduced to mere

empty formalities.[46] Instead it should be conducted with scrupulous regard

to the requirements of natural justice of which the purpose to safeguard the

position of the person is against whom the domestic enquiry is being held so

that he maybe able to meet the charges leveled against him properly.[47]

Further, as pointed out earlier when a workman is pitted against a legally

trained mind or the presenting officer is a legal practitioner or someone who

has knowledge of the law, then it is reasonable and in keeping with natural

justice to allow representation of worker by an advocate to defend him in the

domestic enquiry. What is the rationale behind this? The idea of the enquiry

is to see whether there is a charge made out and to give an opportunity to

the workman to explain and defend himself. This is because every person

has the right to employment and livelihood. Though this may not be a

fundamental right under Art.19(1) yet it has often been read into the right to

‘life’. In consumer Education and Research Centre v. UOI,[48] it was said that

the expression life in Art.21 is wider to include right to livelihood, better

standard of living, hygienic conditions in the work place. And a natural

corollary to achieveing this is to have the right to employment so that every

person can live in dignity and create a liveable atmosphere for himself.[49]

In this background is it constitutional and further still humane to just dismiss

a worker, making him lose his work without giving him a fair and reasonable

opportunity to defend himself. Lord Denning had taken this view in England

that where a man’s reputation or livelihood is at stake he should have a right

of representation.[50]

Besides the fairness and humanitarian angle to this, there are other reasons

which make the appearance of an advocate in an enquiry important. Firstly,

if an advocate is present at the enquiry there is more chances that the

proceedings will be held properly as the legal practitioner will see to the

efficacy of the proceedings and see whether all the formalities are fulfilled.

Further there is fear that since the presiding officer is selected by the

management it self, there may be bias and unfair practices on its part.

Secondly, if u allow an advocate to present the case of a delinquent

workman, this would elevate the status of the proceedings as it will be

looked at with more seriousness and it will be believed that the appearance

of the advocate will make the proceedings more technical and formal to the

extent of fair and just proceedings.

Thirdly, if there is an advocate arguing the case, it is most likely that it would

keep the legal aspects in mind, thus avoiding arbitrary enquiries and even

more arbitrary findings. This will bring faith in the domestic enquiry and a

will to solve the issue quickly. This will avoid congestion of cases at the

Labour Court and Industrial Tribunal.

Lastly, once you say that the principles of natural justice must be followed,

this necessarily entails that the proper procedures of law must be complied

with leading to the natural conclusion that the procedures laid down under

the Civil Procedure Code is best suited to be followed as far as procedure

goes. Thus, once the CPC is brought in, the procedure and charges become

difficult for the worker to understand and therefore, the representation of

such workman through an advocate would be advisable and fair.

Changing face of the law:

However, in contemporary times perceptions and views have changed to

support the representation of a workman by an advocate. It has often been

argued that an Enquiry Officer performs quasi- judicial functions on account

of which principles of natural justice are applicable, then they are applicable

not because they are provided in the standing orders or service rules, but

because they are implicit in the discharge of quasi-judicial functions. Thus

often now even if standing orders provide something contrary, nevertheless,

principles of natural justice would apply.[51]

Under the old concept of free economic system the employer used to enjoy

the right to ‘hire and fire’ his workmen. Though the right to ‘hire’ still belongs

to the employer, the right of ‘fire’ has in recent times been circumscribed by

several limitations.[52] Today, whenever a question of interpreting a labour

statute comes up, the court are reluctant to give an interpretation which

would be prejudicial to the rights or welfare of labour

Recently the Calcutta High Court in India Photographic Co. Ltd v. Saumitra

Mohan Kumar,[53] held that though the court should discourage

involvement of legal practitioner  in simple domestic enquiries like

disciplinary enquiries for avoiding delay, yet the Court cannot ignore the

necessity of such representation in exceptional cases where refusal of such

representation would defeat the purpose of the enquiry itself. The Court did

not lay down any specific rules in any case but said that the issue should be

left for such consideration as the exigencies of facts demand in individual

cases.

CONCLUSION

The above chapter re inforces the fact that a person who is entitled to

appear in person to defend himself before a domestic tribunal is also

entitled, in the absence of an express provision to be represented by a

lawyer. It would be contrary to principles of natural justice to allow one side

to be represented by a lawyer or that the presiding officer maybe well versed

in the legal practice. In considering whether natural justice implies a right to

representation, one must recall that natural justice demands only minimum

safeguards of fair adjudication, and not ideal standards, further as discussed

above these principles only supplement and not overrule any existing law in

practice. However, a person threatened with social or financial ruin by

disciplinary proceedings in a purely domestic enquiry may be gravely

prejudiced if he is denied legal representation.

Development of case law on implied rights of legal representation in non-

statutory areas should, therefore, be guided by a realistic appraisal of the

interests of the person claiming it, as well as of the interests of the

organization to which he belongs.

In fact in the recent past we have seen the situation is changing and the

right to legal representation is slowly finding its way into such disciplinary

proceedings as it now seen as one of the tools of a fair and just enquiry. This

stems from the fact there is more awareness today as to one’s rights and

liabilities and issues of right to employment and livelihood as a corollary to

human rights is no more a talk of the privileged, but is now something

embedded in every human being.

Also after liberalization courts have started showing concern towards the

worker population and is now reluctant to pass judgment which may harm

their dignity and position in society.

Therefore in the light of all this, the right of representation of workman by a

legal practitioner is only a small step in ensuring justice and fairness and

thus courts should keep this is mind when making judicial pronouncements.

BIBLIOGRAPHY

Articles:

1. D.R.K. Rao, “Domestic Enquiry Vs. Departmental Inquiry”, Labour Law

Journal, 2005-I LLJ at 49.

2. E.M.Rao, Industrial jurisprudence (New Delhi; Lexis Nexis, 2004)

3. P.Naresh Kumar, “ Law on representation through legal practitioners before

Labour Courts and Tribunals,” Labour Law Journal (Articles), 2003- 1 LLJ at 10-

17.

4. Shantimal Jain, “Representation before Domestic Tribunal,” Labour and

Industrial Cases, 1987 Lab.I.C. Jour 4 (1)

5. Vijai Shanker, “Disciplinary Action & Natural Justice, Labour Law

Journal, 1971- 1 LLJ at (vi- xvii).

Books:

1. P.L.Malik, Industrial Law,16th  ed (Lucknow; Eastern Book Co., 1992).

2. A.S.Ramachandra Rao, Law relating to Departmental Enquiries for Government

Servants, 2nd  ed (Delhi; Universal Law Publishing Co. Pvt. Ltd,2003).

3. L.C.Malhotra, Dismissal, Discharge, Term of Service and Punishment,  at 103.

4. O.p.Malhotra, at 1054.

5. Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984).

6. H.L.Kumar, Misconducts, Chargesheets and Enquiries, 5th  ed (New Delhi;

Metropolitan, 1992).

7. Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd  ed

(Allahabad; Law Publishing House, 1997).

[1] Vijai Shanker, “Disciplinary Action & Natural Justice, Labour Law Journal, 1 LLJ 1971, (vi- xvii)

[2] Markanday Katju, Domestic Enquiry (Bombay; N.M.Tripathi Pvt Ltd, 1984)

at 4.

[3] Find foot  note

[4] D.R.K. Rao, “Domestic Enquiry Vs. Departmental Inquiry”, Labour Law

Journal, 2005-I LLJ at 49.

[5] Kharda & Co. Ltd v. Its Workmen, 1963-II LLJ 452.

[6] The courts have gone to the extent of saying such enquiries must also be

held in case of probationers. Even if there is an express term in the letter of

appointment of a probationer that his service can be terminated at any time

during the period of probation, the Tribunal can still interfere if the

termination is capricious and unjustified. See, Supra note 2, at 6.

[7] A, at 227.

[8] A, at 228.

[9] This basically means that if  termination is on the basis of ill-health or loss

of confidence, etc , then no enquiry will be required. See, Supra note 2, at 7.

[10] A, at 228.

[11] Supra note 2, at 8.

[12] The charge-sheet should be personally served on the concerned

workman in the presence of atleast two witnesses. If the workman is

unavailable or refuses to accept it, it shall then be sent to his last known

address. The charge-sheet is deemed to be properly served if the letter is

delivered to the workman or returned unaccepted. See, A at 230. In the

event of non-delivery of registered letter, the charge-sheet has to be

published in a local newspaper with wide circulation mentioning the name

and other particulars of the concerned workman. This was observed by the

Supreme Court in Bata Shoe Co. Ltd v. Ganguly, (1961) 1 LLJ 303.

[13] Other situation where enquiry is not necessary is where the termination

is in the form of retrenchment, transfer or closure of the establishment. Also

an enquiry will not proceed where termination is in accordance with standing

orders (discharge simpliciter, loss of confidence, reasons not to be disclosed

in the interest of the company.

[14] G.Nageshwar Rao v. A.P. State Road Transport Corporation, AIR 1959 SC

308.

[15] A, at 231.

[16] A, 232.

[17] N.Kalindi v. Telco, AIR 1960 SC 914.

[18] The establishment’s witnesses are to be examined first in support of the

charges and afterwards the accused workman should be asked to examine

his witnesses, if any. If the accused workman has no evidence to produce or

refuses to name witnesses in his favour, such matter should be recorded by

the enquiry officer. See, Supra note 2, at 12.

[19] The interpreter should sigh an endorsement to the effect that the

evidence as recorded by the enquiry officer was interpreted to the accused

employee to his entire satisfaction. See, A, at 232,

[20] the report should contain all the facts and circumstances of the case,

evidences recorded at the enquiry, charges as well as the explanations given

to them. It is judgment of the case heard by him.

[21] A, at 233.

[22] The following punishments are generally imposed on the employees

depending upon the gravity of the misconduct committed by them: (i)

warning; (ii) Fine; (iii) withholding or stoppage of increments; (iv) Demotion

or reduction in rank; (v) Suspension; (vi) Discharge; (vii) Dismissal. The first

five are minor punishments, while the last two are major ones.

[23] Crescent Dyes and Chemicals Ltd v. Ram Naresh Tripathi, 1993 (66) FLR

537 (SC). The workman, Ram Naresh Tripathi, was charge-sheeted for

misconduct. A domestic enquiry was ordered to look into the alleged acts of

misconduct of the delinquent. The delinquent requested the enquiry officer

to permit him to be defended by one Talraja who claimed to be an office

bearer of the Bombay Mazdoor Union of which the delinquent was a member.

but the enquiry officer did not permit the delinquent to be represented and

defended by the said Talraja since he was not a member of the recognised

union or the unrecognised union functioning in the employer’s

establishment. Thereupon the delinquent did not participate in the enquiry

and the enquiry officer concluded the enquiry ex-parte. That led to the

ultimate dismissal of the delinquent by an order dated January 28, 1981. The

delinquent thereupon filed a complaint in the Labour Court, making a

grievance that the employer was guilty of unfair labour practice enumerated

at Item 1(f) of Schedule IV to the Act, in that, he was not allowed to be

defended by a person of his own choice in violation of the principles of

natural justice. In this case the question also came up as to whether a

workman can be represented by an advocate. The Court held that since the

standing orders permitted a representative to defend the workman, he

should resort to such a course alone and the right to be represented by an

advocate can be restricted and such a restriction would not vitiate the

proceedings as a violation of principles of natural justice.

[24] Prof. S.B.Rao, Handbook on Domestic and Departmental Enquiry, 3rd  ed

(Allahabad; Law Publishing House, 1997) at 142.

IN HIGH COURT OF DELHI : NEW DELHI AT NEW DELHI. 

SUBJECT: LABOUR LAW 

CW No. 1485 of 1979

 

Judgement reserved on:   March 5, 2004

 

Judgement delivered on:  March 17, 2004

 

Domestic Inquiry

 

 

Delhi Transport Corporation

Indraprastha Estate, New Delhi                   

Through Ms. Geeta Sharma, Advocate                                        .........Petitioner

 

                                    Versus

 

1.         N.L. Kakkar

            Presiding Officer

            Industrial Tribunal No.1

            Room No.10, Ground Floor

            (Civil Wing), Tis Hazari Courts Building

            Delhi

 

2.         Karan Singh

            Conductor

            Badge No.2650

            Vill. & P.O. Kerala

            Delhi

                                   

Through          Mr. D.N. Vohra ,Ms. Rashmi

B. Singh, Advocates                                 ........Respondents

 

 

CORAM:

HON'BLE MR. JUSTICE MADAN B. LOKUR 

1.  Whether the Reporters of local papers may

     be allowed to see the judgement?                       Yes

 

2.  To be referred to Reporter or not?                     Yes

 

3.  Whether the judgement should be reported in the Digest? Yes

 

 

 

MADAN B. LOKUR, J.

 

1.                  The Petitioner (DTC) is aggrieved by orders dated 25th April, 1977 and 11th July,  1979 passed by the Additional   Industrial  Tribunal  and the  Industrial Tribunal No.1 respectively in O.P. No.85 of 1974 being an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (the Act).

 

2.                   The facts as they appear from the record are that on 4th May, 1972, two Assistant Traffic Inspectors Om Prakash and H.C. Dutta checked a DTC bus for ticketless travellers.  Three ladies in a group, alighting from the bus after completing their journey from East Park Road to Fatehpuri, were found to be without tickets.  On being asked, they stated that they had given a one-rupee note to the conductor (Respondent/workman herein) who returned 40 paise to them, but did not issue any ticket.   On being confronted, the conductor stated that the tickets were lying on the foot-board of the bus.  These   ladies   were   immediately   taken   to   a   Special   Metropolitan Magistrate/Mobile   Court   for   being   challaned   for   ticketless   travel.   The learned MM passed the following order:-

 

"Heard the accused in detail.  I am convinced that the accused paid the fare to the conductor but he did not issue the ticket properly.   The accused is, therefore, acquitted."

 

3.                  What seems to have transpired is that the fare payable by each lady was 25 paise and when the conductor saw the checking staff, he issued them tickets of 20 paise each. Two other passengers in the bus stated that the conductor threw these tickets on the floor of the bus.  These tickets were seized by the checking staff and were found to be of inadequate denomination and not punched at the proper place.  Since the fare was 25 paise each, the checking 

staff asked the ladies to give another 15 paise to the conductor who then issued three more tickets of 5 paise each.  A challan was then issued to the conductor and the checking staff prepared their report accordingly.

 

4.                   On   these  broad  facts,   the  conductor  was   issued  a   charge  sheet  on  4th September, 1972 containing the following allegations:

"That on 4.5.72 you were conducting bus No.1675 of route No.25-X when the checking officials checked the tickets of the alighted passengers of your bus at Fatehpuri at about 10.55 hours.   Three lady passengers in a group headed by Mrs. Tara Wati who had boarded your bus from East Park Road and from whom you had collected 60 paise as against the due fare of 75 paise alighted there without having been  issued any tickets by you.   You thus contravened the provisions of para 21(iv) of the Executive Instructions - Duties of a Conductor and para 19(b) of the Standing Orders governing the conduct of DTC Employees."

 

 

5.                  A domestic inquiry was held against the conductor, in which he was found guilty and subsequently awarded a punishment of removal from service on 14th August, 1974.  The DTC moved an application under Section 33(2)(b) of the Act before the learned Tribunal seeking approval of their action. 

 

6.                   By the first impugned order, the learned Tribunal held that the domestic inquiry  was  vitiated.   Two reasons  were  given  for  holding  so:  firstly,   the evidence did not point to the guilt of the conductor and secondly, the two passengers who said they saw the conductor throwing tickets on the floor of the bus when the checking staff arrived, were not produced as witnesses before the enquiry officer.

 

7.                   After   holding   the   domestic   inquiry   to   be   vitiated,   the   learned   Tribunal permitted DTC to lead evidence before it for proving the misconduct of the conductor.   DTC   examined   the   checking   staff   as   its  witnesses.   The   lady passengers   were   summoned   as   witnesses   but   were   not   available   for evidence.

 

8.                  The learned Tribunal weighed the evidence and concluded that DTC was not able to prove that the conductor did not issue the tickets.  On the contrary, it was held that the conductor did issue tickets to the ladies.   The learned Tribunal also held that the ladies were the best witnesses to state whether the conductor had issued tickets or not.  Since they were not produced, no case  was  made  out   against   the   conductor.   Accordingly,   the   application under Section 33(2)(b) of the Act was dismissed by the second impugned order.

 

9.                  Challenging the correctness of the first impugned order, learned counsel for the Petitioner contended before me that the evidence on record, including the conclusion of the learned Magistrate, shows that even though tickets may have been issued by the conductor, the fact remains that they were not valid tickets for the journey since the fare was 25 paise per head but the tickets   issued  were   for   20   paise   each.   Moreover,   the   tickets  were   not punched in the proper place and were not handed over to the ladies but were   thrown  on   the   floor   of   the   bus  when   the   checking   staff   arrived.  According to learned counsel, it can hardly be said that the conductor had "issued tickets" to the ladies and the inquiry officer had correctly assessed the evidence.   There was, therefore, no reason for the learned Tribunal to differ with the views of the inquiry officer. It was further submitted that the learned Tribunal was unduly influenced by the fact that the two passengers were not produced as witnesses. 

 

10.                The second impugned order was challenged by learned counsel on similar grounds.   It  was alternatively  contended that  the Presiding Officer of  the 

learned  Tribunal  was  not  specifically  empowered   to  deal  with   the  case.  However, in the view that I am taking, it is not necessary to deal with the alternative contention.

 

11.               Two issues arise in this case: the extent of interference permissible with the findings   in   a   domestic   inquiry   and   the   necessity   of   passengers   being produced  as  witnesses,   that   is   to  say,  whether  hearsay  evidence  can be accepted in a domestic inquiry.

 

12.               Both the aforesaid issues are squarely covered in favour of DTC by several decisions, including a leading decision of the Supreme Court and a Division Bench decision of this Court.

 

Passenger witnesses

 

13.               In a similar fact situation, a Full Bench of the Punjab & Haryana High Court in State of Haryana vs. Ram Chander 1976 (2) SLR 690 laid the foundation for its  discussion  in paragraph 3 of  the Report.   It  was held that  a domestic tribunal is not bound by the strict rules of evidence and can evolve its own procedure as long as it is in accordance with the principles of natural justice.  It was said :

 

"The   first   question   for   consideration   is,   whether   the   evidence   of   the checkers as to what they were told by the passengers was not legal evidence in the domestic enquiry against the respondent.  Time and again, it has been repeated by the Supreme Court that domestic tribunals in the absence of statutory guidance, have the right to regulate their own procedure and are also not bound by the strict rules of evidence.  The rules of procedure and the rules of evidence observed in Courts are often misplaced in domestic enquiries.   A   Domestic   tribunal  whose   procedure   is   not   regulated   by   a 

statute is free to adopt a procedure of its own so long as it conforms to principles  of   natural   justice.   It   is   equally   free   to   receive  evidence   from whatever source if it is 'logically probative'."

 

 

14.               Thereafter, the Full Bench considered earlier decisions of the Supreme Court and also referred to cases from England to lay down the law in paragraph 4 of the Report with regard to the value to be attached to hearsay evidence.  It was held :

 

"...   ...  where a bus  is checked and it   is  found that tickets have not been issued to several passengers and the passengers state in the presence of the conductor that they paid the fare, the enquiry officer would be justified in acting upon the evidence of the checkers stating these facts even though the passengers themselves are not examined as witnesses.  A finding of guilt arrived at by him would not be based on pure hearsay.  It would be based on (1) the evidence of the Checker that he found passengers travelling without tickets and (2) the statements made by the passengers to the checker at the time of checking.  The second item of evidence alone would be hearsay but it  would be hearsay of high probative value because of the circumstance that statements were made in the presence of the conductor and on the spot.  In such a case, it cannot be said that the enquiry officer's findings are based on pure hearsay or hearsay of unreliable nature."

 

15.               The most important judgement on the subject is State of Haryana vs. Rattan Singh (1977) 2 SCC 491.  The facts of that case are similar to the facts of the present case.  What must be mentioned, however, is that in Rattan Singh the Civil   Court   declared   the  domestic   inquiry   a   nullity.   The  appellate  Court affirmed this conclusion and the High Court dismissed a second appeal.  Yet, the Supreme Court entertained a petition for special  leave to appeal and upset the conclusions of three Courts. 

 

16.        The   contentions   urged   before   the   Supreme   Court   are   also   of   some         importance.  They are:

 

(i)                 None of the passengers travelling without tickets were examined in the domestic enquiry.

 

(ii)               The checking inspectors had violated a departmental instruction by not recording the statements of the passengers.

 

(iii)               The co-conductor in the bus had affirmed the innocence of the conductor.

 

17.               The Supreme Court held in paragraph 4 of the Report that a domestic inquiry can take  into consideration all  materials   logically probative for a prudent mind   and   that   there   is   no   allergy   to   hearsay   evidence,   provided   it   has reasonable nexus and credibility.   It  was said that the passengers are not required to be chased and brought before the domestic tribunal.

 

18.               On the scope of permissible interference with the conclusions of a domestic inquiry, the Supreme Court said in the same paragraph that what has to be seen is whether there was some evidence or was it a case of no evidence.  As long as there is some evidence, sufficiency thereof in proof of a finding by a domestic tribunal is beyond scrutiny.  The Supreme Court found that there was   some  evidence  before   the   inquiry  officer   and,   therefore,   the  order passed in the domestic inquiry could not be held invalid.

 

19.                I  think it   is worth quoting the view of the Supreme Court as reflected in paragraph  4  of   the  Report.   This  passage   really  answers  both   the   issues before me.  This is what the Supreme Court says:

 

"It is well settled that in a domestic enquiry the strict and sophisticated rules of  evidence  under   the   Indian  Evidence  Act  may not  apply.   All  materials which are logically probative for a prudent mind are permissible.  There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.  It is true that departmental authorities and administrative tribunals must be careful   in evaluating such material  and should not glibly swallow what  is strictly   speaking   not   relevant   under   the   Indian   Evidence   Act.   For   this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides.   The   essence   of   a   judicial   approach   is   objectivity,   exclusion   of extraneous materials or considerations and observance of rules of natural justice.  Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgement vitiate the conclusions reached, such  finding,  even  though of  a  domestic   tribunal,   cannot  be  held  good.  However,   the  courts  below misdirected   themselves,  perhaps,   in   insisting that  passengers  who  had   come   in   and  gone  out   should  be   chased  and brought before the tribunal before a valid finding could be recorded.   The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement.   The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept.  Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.  Absence of any evidence in support of   a   finding   is   certainly   available   for   the   court   to   look   into   because   it amounts to an error of law apparent on the record.  We find, in this case, that   the   evidence   of   Chamanlal,   Inspector   of   the   flying   squad,   is   some evidence   which   has   relevance   to   the   charge   levelled   against   the 

respondent.   Therefore, we are unable to hold that the order is invalid on that ground."

 

20.                With   regard   to   the   second   contention   relating   to   non-compliance   of departmental   instructions,  the Supreme Court found them to be rules of prudence and not rules that bind so that their violation will not vitiate the exercise.  Absence of written statements of the passengers (the statements were orally made) was explained by Supreme Court as being understandable given the psychology of  the passengers,  though not worthy of  approval.  But, it was held that merely because their statements were not recorded, it would not invalidate the order in the domestic inquiry.

 

21.               Finally, with regard to the third contention, the Supreme Court held that "re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal."

 

22.               Two facts are noteworthy in the decision of the Supreme Court.  Firstly, the only evidence against the conductor was what was told by the passengers to the checking staff.   The passengers did not enter the witness box, nor did they   give   written   statements   to   the   checking   staff.   Secondly,   the   co-conductor   supported   the   conductor   and  apparently  entered   the  witness box.   Yet the Supreme Court accepted the finding of the domestic inquiry and reversed the conclusion of three Courts.

 

23.                Soon after the decision of the Supreme Court  in Rattan Singh,  a Division Bench of this Court had occasion to deal with a similar situation, wherein again,   both   the   issues   before  me   had   also   arisen.   In   Delhi   Transport Corporation vs.  Presiding Officer, Additional   Industrial  Tribunal (1979) XVI DLT 220, the Division Bench noted two competing principles, that is, non-reviewability of a finding of fact based on evidence and violation of the rules of natural justice.  The Division Bench laid down the law on page 224 of the 

Report and then referred to and relied upon Rattan Singh in support of its conclusions.  This is what the Division Bench said:

 

"The alleged violation of natural justice pre-supposes that it was necessary that   the   passenger  witness   should   have   been  made   available   for   cross examination.   This assumption is baseless.   Firstly, the notice by registered post sent to the witness was received back with the remark that the witness had left the address and the notice could not, therefore, be served on that address.   This   made   it   impossible   for   the   Inquiry   Officer   to   serve   the passenger witness.   Secondly, the question whether the hear-say evidence of   the  checking  staff about   the statement  of   the passenger  should  have been admitted in evidence by the Inquiry Officer because of the impossibility of enforcing his attendance which may arise in a suitable case did not arise in this case.  Even when no such impossibility of enforcing the attendance of the passenger was proved the Supreme Court observed in State of Haryana and another v. Rattan Singh ......"

 

 

24.               On the question of interference with a finding of fact arrived at in a domestic inquiry, it was held :

"Therefore,   in   the  present  case,   the  principle   (sic)  finding  of   fact  of   the Inquiry Officer which is based on some evidence independent of the written statement or oral evidence of the passenger witness is unassailable."

 

25.                On   page   225   of   the   Report,   the   Division   Bench   made   an   important observation, which I think should be taken serious note of.  It was said:

 

"We may take judicial notice of the fact that the checking of the conductors of the buses of the appellant is a salutary practice. Its effectiveness cannot be   defeated   by   technicalities.   When   the  misconduct   is   proved   by   the 

common  sense   standards  before   the   Inquiry  Officer,   legal   ingenuity   and technicalities should not be allowed to impugn the common sense findings and defeat the operation of the system of checking."

 

26.               The above Division Bench decision was followed by a learned Single Judge of this Court in Sultan Singh vs. Delhi Transport Corporation, 1987 I LLN 399.  In that case, grant of approval under Section 33(2)(b) of the Act was challenged by the petitioner on the ground that the passenger witness who had given a statement against the petitioner was not examined and so the petitioner did not have any opportunity to cross-examine this witness and, therefore, the inquiry   against   him   was   vitiated.   The   learned   Judge   also   referred   to Mahinder Singh vs. Presiding Officer (CW No.136 of 1975 decided on 10th February 1979) and observed that in these cases, it had been held that:

 

"... ... even if the passenger witnesses are not examined and if there was enough other evidence to prove the misconduct of the employee the inquiry is  not vitiated.   In the present case also, there  is  a clear finding that the checking   officers  were   examined   and   they   gave   evidence   to   prove   the misconduct   and   the   statement   of   the   passenger   was   recorded   in   the presence of the petitioner.   Thus, even if the statement of the passenger witness is held to be inadmissible since there was other evidence, the order cannot be held to be invalid."

 

 

27.                Shyam Sunder vs. Delhi Transport Corporation (CW No.922/76 decided on 5th February, 1996) dealt with an identical issue.   In that case, the learned Single Judge referred to DTC vs. Presiding Officer (CW No.7/79 decided on 16th July, 1979), the Division Bench decision mentioned above and Rattan Singh   and  held   that   since   the   inquiry   officer   based   his   findings   on   the examination of   the checking staff (who were also cross-examined),   there was independent evidence to link the petitioner with the charges levelled 

against him.  Consequently, the statement of the passengers, not being the sole material against the petitioner, the domestic inquiry was not vitiated.

 

28.       The learned Judge also held that:

"It is settled law that this court is not competent and has no jurisdiction to reappraise the evidence on record and come to a different finding from that of the Enquiry Officer."

 

 

29.                It   is  quite  clear   that   the consistent  view of   this  Court  over  the   last   few decades has been that the non-production of  passenger witnesses  is  not fatal to the domestic inquiry and that findings of fact arrived at in a domestic enquiry   should  not  be   interfered  with   so   long   they  are  based  on   some evidence.  The value of that evidence and what weight is to be attached to it is within the jurisdiction of the tribunal. 

 

Law laid down by some other High Courts.

 

30.               What is the view of some other High Courts? The view of the Karnataka High Court is clear from three Division Bench decisions.  In Karnataka State Road Transport  Corporation  vs.   Sathyanarayanan,  2003-II-LLJ  301,   a   conductor failed to issue tickets to a group of seven passengers despite collecting the fare from them.  With a view to misappropriate the amount, he also closed the waybill. After a disciplinary enquiry, the conductor was found guilty and dismissed but the Labour Court held that the charge against the conductor was not established.  A learned Single Judge upheld the view of the Labour Court.   The Division Bench concluded that simply because the passengers, whose   statements   were   recorded   by   the   checking   officials,   were   not examined in the domestic enquiry,   it  cannot be said that the evidentiary value of those statements  is   lost.   It  was also found that to cover up his 

misdeeds,  the conductor  had closed the waybill.  The Division Bench held that the misconduct by the conductor was proved.

 

31.                Similarly,   in  North  West   Karnataka   Road   Transport   Corporation   vs.   K.S. Raghunathappa, 2003-II-LLJ  989, the allegation against the conductor was that he had not issued tickets to six passengers despite having collected the fare from them.  After a disciplinary enquiry, he was dismissed from service.  The Labour Court before whom an industrial dispute was raised held that the   domestic   enquiry   was   fair   and   proper   but   the   charge   against   the conductor was not proved, inter alia, because none of the passengers were examined.   The Division Bench rejected the reasoning of the Labour Court after   relying   upon   Rattan   Singh.   It   was   also   held   that   apart   from   the statement of the passengers, there was other material such as unpunched tickets, offence memo checking report etc.

           

32.               In North West Karnataka Road Transport Corporation vs. S.S. Poleshi, 2000 III CLR 203, the conductor of a bus had not issued tickets to some passengers despite taking the fare.  Disciplinary proceedings were initiated against him and he was dismissed from service.  He raised an industrial dispute and the Labour Court held that the charges against him were not proved because none   of   the   passengers   had   been   examined   during   the   adjudication proceedings.  A learned Single Judge upheld the view of the Labour Court. In appeal, the Division Bench relied upon Rattan Singh to set aside the order of the learned Single Judge and restored the penalty of dismissal from service.

 

33.               The view of the Bombay High Court is to be found in Pandurang Kashinath Wani   vs.   Divisional   Controller,   1996-I-LLJ   540.   In   that   case   also,   the conductor   failed   to   issue   tickets   to   some   passengers   despite   having collected the fare from them.  After a domestic enquiry, the conductor was dismissed from service and though the Labour Court held that the domestic enquiry was conducted fairly, the punishment of dismissal from service was found to be disproportionate.

 

34.                In a writ  petition filed before the High Court,   it  was contended that the domestic enquiry was not fair because the passengers were not subjected to cross-examination.

 

35.               The High Court rejected the contention on the ground that the statement of the passengers was recorded in the presence of the conductor who made an endorsement at the foot of each statement and put his signatures.   It was not  as   if   the statement  of   the passengers  was   taken at   the back of   the conductor.   Relying upon Rattan Singh,   it  was held that  even though the passengers were not called at the domestic enquiry and permitted to be cross-examined, there was no violation of the principles of natural justice. Additionally,   it  was noted that the conductor was found in possession of sufficient stock of tickets in his money bag for which the explanation given by him was fanciful and unsatisfactory.

 

36.               The Madras High Court in Pandian Roadways Corporation Ltd. vs. Presiding Officer, 2000-II-LLJ 1593 also dealt with a case where the conductor did not issue  tickets   to   some  passengers  despite  having   collected   the   fare   from them.  The statement of the passengers was recorded by the checking staff who was examined in the departmental enquiry held by the appellant.  The conductor   was   dismissed   from   service   but   the   Labour   Court,   upon   an industrial dispute having been raised by the conductor, upheld the validity of the domestic inquiry but directed the reinstatement of the conductor on the ground that the punishment was excessive.

 

37.               Relying upon Rattan Singh, the Madras High Court came to the conclusion that it was not necessary to examine the passengers.  In that case, however, there was a slight difference on facts inasmuch as the conductor admitted that he did not have time to complete the necessary paper work at the time of issuing the tickets.  Based on this admission, as well as the evidence of the 

checking inspector and the fact that the conductor had not completed the invoice, the Madras High Court interfered with the order of reinstatement and approved the dismissal of the conductor.

             

38.                The view of the Gujarat High Court  is to be found in Gujarat State Road Transport  Corporation vs.  M.S.  Patel,  1998  II  CLR 473.   In   that  case,   the conductor of a bus did not issue tickets to two groups of passengers.  The checking staff made a report after taking the statements of the passengers. In a departmental enquiry, the conductor was held guilty of misconduct and dismissed from service. The Labour Court, however, upset the finding of the disciplinary authority and reinstated the workman.  The Gujarat High Court held that it was not a criminal prosecution where the allegations have to be proved   against   the   conductor   beyond   doubt.   The   checking   staff   had produced   the   statements   of   the   passengers   and   had   withstood   cross-examination. Relying upon the judgement of the Supreme Court in Rattan Singh, it was held that the finding of guilt  against the conductor was not unjustified.

 

Conclusion

 

39.               A perusal of the above judgements of various High Courts clearly shows that the production of  passengers either   in a domestic enquiry  or before the Labour Court in an industrial dispute is not at all necessary.  Indeed, I am of the  view  that   in  most   cases   this  would  be  highly   impractical  because   it would  mean   that  passengers  would  have   to  be   traced  out,   chased  and brought   before   the   enquiry   officer   or   the   Labour   Court   causing   them unnecessary   inconvenience.   One   has   to   take   a   pragmatic   view   of   the situation as well as consider the amount of effort and energy that may have to   be   expended   in   producing   the   passengers   as  witnesses.   DTC   carries passengers who are residents of not only Delhi but also of other States. Is it practicable to expect a passenger, who goes back to his State after a trip to Delhi, to appear before an Inquiry Officer for confirming a statement already 

given by him to the checking staff?  As our Division Bench has cautioned us, one has to take a commonsense approach to the whole problem and not allow legal technicalities to come in the way.

 

40.               The facts of the present case show that there was some evidence before the Inquiry Officer, in the form of the statements of Om Prakash and H.C. Dutta and the report prepared by them.  More importantly, the conclusion arrived at by the Special Metropolitan Magistrate/Mobile Court should have really concluded   the   issue   against   the   conductor.   Unfortunately,   the   learned Tribunal did not approach the issues before it in the right perspective and on the basis  of  the  law  laid down, and that   is  why  it   fell   into error.   It  was certainly not a case of no evidence.   It  was also not a case of perversity, because there was some legal evidence before the Inquiry Officer, evidence that had high probative value and that had nexus with the events that were being   enquired   into.   Once   this   is   established,   and   I   think   it   has   been established in this case, the question of upsetting the conclusions of fact arrived at by the Inquiry Officer does not arise, as held in Rattan Singh and consistently followed by this Court.

 

41.                 Under the circumstances,    the learned Tribunal erred in holding that the domestic inquiry was vitiated. It must be held that the guilt of the conductor was correctly established by the inquiry officer.   The first impugned order must, therefore, be set aside and the order of removal from service passed against   the   Respondent   conductor   on   14th   August,   1974   is   restored.  Consequently,   it   is  held there was no occasion for  DTC to  lead evidence before   the   learned  Tribunal   to  establish   the  guilt  of   the  conductor.  The second impugned order is required to be quashed for this reason alone.

 

42.               The writ petition is allowed. The order dated 25th April, 1977 passed by the learned Additional Industrial Tribunal in O.P. No. 85 of 1974 is quashed. No costs.

 

 

March 17, 2004                                    ( Madan B. Lokur )

ncg/rkr                                                  Judge

 

Adjudication Under Minimum Wages Act, 1948Print this

TABLE OF CONTENTS

Sr. no. CONTENTS Page no.

1. List of Abbreviations 2

2. Table of Cases 3

3. Research Problem 4

4. Aims and Objectives 5

6. Hypothesis 6

7. Research Problem 7

8. Literature Review 8

9. Scope 9

10. Body of Project

i. Introduction

ii. Salient Features of the Act

iii. Claims under MW Act, 1948

iv. Legal Provisions including Judicial Trends

v. Areas not covered under Section 20 of MW act.

10

12

14

16

27

11. Conclusion 28

12. Bibliography 29

LIST OF ABBREVIATIONS

All India ReporterAIR

AllahabadAll.

GovernmentGovt.

LimitedLtd.

BombayBom.

Supreme CourtSC

Labour Law NotesLLN

Labour Law JournalLLJ

Labour Law ReporterLLR

Life Insurance CorporationLIC

RajasthanRaj.

KarnatakaKar.

MadrasMad.

Versusv.

LIST OF CASES

1. Automobile Transport (Rajasthan) P. Ltd. v. Labour Commissioner, 1964

(2) LLJ 623 (Raj)

2. Basavaraja Chemma Naik v. Karnataka Veneers Ltd., 1985 (67) FJR 27

(Kar.)

3. C.S.Parameswaram v. Authority under Minimum Wages Act, 1970 LIC 315

4. Chief officer, Town Municipal Council, Nippani v. Ramchandra Dattatreya

Patil, AIR 1969 Mysore 202

5. Crown Aluminium Works v. Their Workmen, AIR 1958 SC 30

6. M.L.Gupta v. City Magistrate, AIR 1960 All. 541

7. Manganese Ore(India) Ltd. v. Chandilal Sahu, 1991 LLR 151

8. Municipal Committee, Raikot v. Shamlal Kaura, 1996 (1) LLJ 57 (SC)

9. Murugan Transports v. Radhakrishnan, AIR 1961 Mad 310

10. Poly Plast Pvt. Ltd. v. Shiv Prasad, 2007 (1) LLN 47

11. Radhey Shyam v. Labour Inspector, 1982 (44) FLR 176 (Raj)

12. Ramaswami Doss v. Rama Pillai, AIR 1955 Mad. 569

13. S. Ponnambalan v. Deputy Labour Commissioner, 1995 (1) LLJ 135 (Ker.)

14. State of Jharkhand through of Labour v. Nirmal Singh, 2005 (2) LLJ 345

15. State of Rajasthan v. Mohan Singh and others, 2003 (96) FLR 4 (Raj.)

16. Robert Toppo v. State of Jharkhand and others, 2003 (98) FLR 716 (Raj.)

17. Tamil Nadu spinning Mills Association, Dindigul v.State of Tamil Nadu,

2008 (1) LLN 583 (Del.)

RESEARCH PROBLEM

1) Adjudication process under the Minimum Wages Act, 1948.

2) Procedure in case of Malicious and Vexatious Complaints.

3) Procedure in case of Civil and Criminal Matters

AIMS & OBJECTIVES OF THE STUDY

• To understand the adjudication procedure under the Minimum Wages

Act, 1948.

• To analyse the views of various High Courts and Hon’ble Supreme Court in

several disputes.

• To review the different changing views of courts from time to time.

HYPOTHESIS

• The researcher assumed that the adjudication procedure covers all the

principles of Natural Justice.

• The researcher also assumed that the procedure under civil and criminal

matters are almost same.

• The researcher assumed that Section 20(3) of the Minimum Wages Act,

1948 is constitutionally valid or not.

RESEARCH METHODOLOGY

The research methodology used in this project is the non-empirical type of

research. The sources from where the data has been collected are the

secondary sources.

LITERATURE REVIEW

1. Ratna Sen’s Industrial Relations; Text and Cases proved to be useful in

knowing the concept of ‘Wages’. The researcher also came to know

regarding different criteria taken into consideration while determining wage

rate in industries.

2. Dr. Kaushik C. Raval and Krishna Pal Malik’s An Introduction to Labour

Laws proved to be useful in knowing the claims and procedures under

Minimum Wages Act, 1948 in nutshell.

3. S.B.Rao’s Law and Practice on Minimum Wages proved to be useful for

detailed study of the topic, as this book contains commentaries and judicial

interpretations of various cases in different High Courts and Hon’ble

Supreme Court. Moreover the author could have focused more on

commentaries, mentioning his own views rather than explaining only on

Judicial interpretations.

4. Meenu Paul’s Labour and Industrial Law is similar to S.B. Rao’s Law and

Practice on Minimum Wages as the book of Meenu Paul contains a brief

commentaries provided by S.B. Rao.

5. Dr. Avtar Singh’s Introduction to Labour and Industrial Law was referred

merely as a bare act as there are no commentaries provided in the book. The

language used in bare text is presented in a simplified version.

6. S.N.Misra’s Labour and Industrial Laws explained the act with help of

precedents as there no commentaries, only bare-text and precedents.

SCOPE OF STUDY

• The researcher has limited the scope till section 20 of the Minimum Wages

Act, 1948. As it deals with adjudication procedure, authority, penalty etc.

INTRODUCTION

A wage is a compensation, usually financial, received by workers in

exchange for their labor. Compensation in terms of wages is given to

workers and compensation in terms of salary is given to employees.

Compensation is a monetary benefit given to employees in return for the

services provided by them.[ ] Etymologically speaking Wage is derived from

words which suggest “making a promise,” often in monetary form.

Specifically from the Old French word wagier or gagier meaning to pledge or

promise, from which the money placed in a bet (wager) also derives. These

in turn may derive from the French gage to wager, the Gothic wadi, or the

Late Latin wadium, also meaning “a pledge”.[ ][ ]

A minimum wage is the lowest hourly, daily or monthly wage that employers

may legally pay to employees or workers. Equivalently, it is the lowest wage

at which workers may sell their labor. [ ]

In a developing country like ours which faces the problem of unemployment

on a very large scale it is not unlikely that labour may offer to work even on

starvation wages. The policy of the act is to prevent employment of sweated

labour in the general interest and so, in prescribing minimum wages rates,

the capacity of employer need not be considered as the state assumes that

every employer must pay to the minimum wages for the employee’s labour.[

]

The concept of Minimum Wages was first evolved by ILO in 1928 with

reference to remuneration of workers in those industries where the, level of

wages was substantially low and the labour was vulnerable to exploitation,

being not well organised and having less effective bargaining power. The

need for a legislation for fixation of minimum wages in India received boost

after World War – II when a draft bill was considered by the Indian Labour

Conference in 1945.

On the recommendation of the 8th Standing Labour Committee, the

Minimum Wages Bill was introduced in the Central Legislative assembly on

11.4.1946 to provide for fixation of minimum wages in certain employments.

The Minimum Wages Bill was passed by the Indian Dominion Legislature and

came into force on 15th March, 1948. Under the Act both State and Central

Government are “Appropriate Governments” for fixation/revision of minimum

rates of wages for employments covered by the Schedule to the Act.[ ]

A tripartite Committee Viz., “The Committee on Fair Wage” was set up in

1948 to provide guidelines for wage structures in the country. The report of

this Committee was a major landmark in the history of formulation of wage

policy in India. Its recommendations set out the key concepts of the ‘living

wage’, “minimum wages” and “fair wage” besides setting out guidelines for

wage fixation.

Article 39 states that the State shall, in particular, direct its policy towards

securing (a) that the citizen, men and women equally shall have the right to

an adequate livelihood and (b) that there is equal pay for equal work for both

men and women.

Article 43 states that the State shall endeavour, by suitable legislation or

economic organization or in any other way, to give all workers, agricultural,

industrial or otherwise, work, a living wage, conditions of work ensuring a

decent standard of life and full enjoyment of leisure, and social and cultural

opportunities.[ ]

SALIENT FEATURES OF THE MINIMUM WAGES ACT, 1948

“To provide for fixing of minimum wages in certain employments”

The act enjoins the appropriate government to fix minimum rates of wages

to the employees working in industries or employments included in the

schedule to the act and to review and to revise them atleast once in every

five years.[ ]

The act imposes obligation on the employer to pay minimum wages fixed by

the government.[ ]

The wages shall be paid in cash unless there was a custom to pay them

wholly or partly in kind in and the govt. authorizes the payment thereof.[ ]

The act also made a provision to the employees to claim the amounts short

paid by the employer. In appropriate cases the employee could also get

compensation from the employer for non-payment or short payment of

minimum wages fixed and notified by the govt.[ ]

The act does not define minimum wages. The wage committees and the

appropriate governments keep in mind while fixing the minimum wages, the

basic needs of the workman and his family and preserving his efficiency as a

worker. The capacity of employer to pay the proposed minimum wages was

not a consideration in fixing the minimum wages.

The procedure or the manner of fixing or revising the minimum rates of

wages is also provided in the act. The act gave the govt. two opinions;

i. The govt. could appoint one or more committees to hold enquiries, gather

the required information and advise the govt. in the matter of fixing

minimum rates of wages.

ii. The govt. could formulate its proposals publish them in official Gazette,

give not less then two months time to the persons affected by the proposals

to make representations and fix the minimum rates of wages and to notify

them in the Gazette.[ ]

The Wage Committee or the Advisory Board shall consist of equal no. of

persons representing employees and employers and independent persons

shall be a chairman.[ ]

The state govt. shall appoint an Advisory board to coordinate work of various

committees and advise the govt. in the matter of fixing and revising the

minimum rates of wages. Similarly Central govt. shall appoint a Central

Advisory Board. [ ]

The Govt. may fix minimum piece rate wage or time rate wages and also

provide for guaranteed wages for employees on piece rate wages.[ ]

Alongwith fixing minimum wages the govt. is also empowered to fix hours of

work for a normal working day, overtime wages, the rest day and wages

required to be paid for working on the rest day.[ ]

The govt. may either fix composite wage including the basic wage rate,

dearness allowance and cash value for concessions in respect of supplies of

essential commodities or separate rates for each of these elements.[ ]

Provision is also made for prosecuting the offending employers and for

imposing penalties for offences.[ ]

CLAIMS UNDER MINIMUM WAGES ACT, 1948

Section 20 of the Minimum Wages Act deals with claims. The bare text is as

follows

(1) The appropriate government may by notification in the Official Gazette

appoint any Commissioner for Workmen’s Compensation or any officer of the

Central Government exercising functions as a Labour Commissioner for any

region or any officer of the State Government not below the rank of Labour

Commissioner or any other officer with experience as a judge for a civil court

or as a Stipendiary Magistrate to be the authority to hear and decide for any

specified area all claims arising out of payment of less than the minimum

rates of wages or in respect of the payment of remuneration for days of rest

or for work done on such days under clause (b) or clause (c) of sub-section

(1) of section 13 or of wages at the overtime rate under section 14 to

employees employed or paid in that area.

(2) Where an employee has any claim of the nature referred to in sub-section

(1) the employee himself or any legal practitioner or any official of a

registered trade union authorised in writing to act on his behalf or any

Inspector or any person acting with the permission of the authority

appointed under sub-section (1) may apply to such authority for a direction

under sub-section (3):

Provided that every such application shall be presented within six months

from the date on which the minimum wages or other amount became

payable :

Provided Further that any application may be admitted after the said period

of six months when the applicant satisfies the authority that he had sufficient

cause for not making the application within such period.

(3) When any application under sub-section (2) is entertained the authority

shall hear the applicant and the employer or give them an opportunity of

being heard and after such further inquiry if any as it may consider

necessary may without prejudice to any other penalty to which the employer

may be liable under this Act direct –

(i) in the case of a claim arising out of payment of less than the minimum

rates of wages the payment to the employee of the amount by which the

minimum wages payable to him exceed the amount actually paid together

with the payment of such compensation as the authority may think fit not

exceeding ten times the amount of such excess;

(ii) in any other case the payment of the amount due to the employee

together with the payment of such compensation as the authority may think

fit not exceeding ten rupees;

and the authority may direct payment of such compensation in cases where

the excess or the amount due is paid by the employer to the employee

before the disposal of the application.

(4) If the authority hearing any application under this section is satisfied that

it was either malicious or vexatious it may direct that a penalty not

exceeding fifty rupees be paid to be employer by the person presenting the

application.

(5) Any amount directed to be paid under this section may be recovered –

(a) if the authority is a Magistrate by the authority as if it were a fine

imposed by the authority as a Magistrate or

(b) if the authority is not a Magistrate by any Magistrate to whom the

authority makes application in this behalf as if it were a fine imposed by such

Magistrate.

(6) Every direction of the authority under this section shall be final.

(7) Every authority appointed under sub-section (1) shall have all the powers

of a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the

purpose of taking evidence and of enforcing the attendance of witnesses and

compelling the production of documents and every such authority shall be

deemed to be a civil court for all the purposes of section 195 and Chapter

XXXV of the Code of Criminal Procedure 1898 (5 of 1898).

AUTHORITY UNDER SECTION 20(1) OF THE MINIMUM WAGES ACT, 1948

To hear and decide the claims of the employees to the minimum rates of

wages under Minimum Wages Act, 1948, the appropriate govt. may appoint

an authority under section 20(1) of the act. The authority under section 20(1)

is appointed by the appropriate govt. by notification in appropriate Gazette.

According to sub-section 1 of section 20 any of the following persons ,may be

appointed as an authority under the act :

i. Any Commissioner for Workmen’s Compensation or

ii. Any officer of the Central Government exercising functions as a Labour

Commissioner for any region or

iii. Any officer of the State Government not below the rank of Labour

Commissioner or

iv. Any other officer with experience as a judge for a civil court or as a

Stipendiary Magistrate.

In Malati Tea Estate Ltd. v. Budhani Munda[ ] it was held that the

appointment of authority under section 20(1) need not be by name; it may

be by office.

In Niranjan Lal Bhargava & Co. v. Deputy Labour Commissioner[ ] the high

court rejected the argument of the employer that Deputy Labour

Commissioner even though was appointed as Commissioner for workmen’s

compensation under the Workmen’s Compensation Act, could not have been

appointed as an Authority in view of the wording of Section 20(1) of the

minimum wages act as he was only a Deputy Labour Commissioner and does

not fit into the condition “Any officer of the Central Government exercising

functions as a Labour Commissioner for any region or any officer of the State

Government not below the rank of Labour Commissioner”

In Poly Plast Pvt. Ltd. v. Shiv Prasad[ ] wages of a helper was paid by the

management, the claim of management was perfectly justified and was

rightly allowed by the competent authority.

In State of Jharkhand through of Labour v. Nirmal Singh[ ] Authority

appointed under the act, such a claim can be made by an employee, person

authorized, or by inspector, Authority can pass an order directing the

employer to pay the difference between the wages paid and the minimum

wages fixed.

JURISDICTION OF THE AUTHORITY APPOINTED UNDER SECTION 20(1)

a. All claims arising out of payment of less then minimum rates of wages

b. All claims in respect to wages not paid within the time prescribed under

Section 12 (1).

c. All claims in respect of payment remuneration for days of rest for work

done on such days under section 13 (1) (b) and (c).

d. All claims in respect of wages at the overtime rate under Section 14.

FILING CLAIM UNDER SECTION 20(2)

Under Section 20(2) of the Act any of the following persons can file a claim

petition before the authority for directions.

a. Employee himself.

b. A legal practitioner authorized by employee in writing.

c. A registered trade Union authorized by employee in writing.

d. An inspector appointed under section 19 of the Minimum Wages Act.

e. Any person acting with the permission of the Authority.

The Supreme Court in a recent judgment held that both past and present

employees could file claim under section 20(2) of the Minimum Wages Act.

This judgment overruled the decision in Municipal Committee, Raikot v.

Shamlal Kaura[ ] of Punjab High Court and approved judgment of Madras

High Court in the case of Murugan Transports v. Radhakrishnan.[ ]

Even numerous can file a single claim application in respect to balance

payable to them under Minimum wages payable to them and actually

received by them. In such a case the compensation should be limited to 10

times the aggregate amount of wages directed to be paid to the employees

or ` 10 per head as the case maybe.

The authority under the Minimum Wages act has justification to allow a claim

for the preceding six months as the cause of action can be a continuous one.

[ ]

If there is any sufficient cause for not filing claim within the prescribed time

i.e. 6 months the delay can be condoned by the authority as mentioned in

second proviso of section 20(2). Moreover section 20 does not refer to Article

102 of the schedule 1 of the Indian Limitation ac, 1908 and as such it was

not right to import into section 20(2).[ ]

PROCEDURE TO SETTLE CLAIM

SECTION 20(3) OF MINIMUM WAGES ACT, 1948

An Employee who has claim over the Employer through his legal

practitioner or a official of a registered Trade Union or Employee himself may

apply to the Authority for claims for getting a direction.

The Appropriate Authority will hear the applicant and the Employer and

after giving both the persons a reasonable opportunity to hear and after

making such further inquiry will pass an order.

In case the Appropriate Authority finds that the Employer is guilty then, the

Appropriate Authority will direct the Employer for Payment of Compensation

which may not exceed 10 times of the actual Compensation.

In case the Appropriate Authority finds that the Employee is guilty then, no

Compensation is payable.

In case the Appropriate Authority finds that both Employer and Employee is

not guilty then, Employee has to pay Rs.50/- to Employer.

The direction given by the Appropriate Authority shall be final.

The Compensation directed by the Appropriate Authority shall be

recovered from the Employer as if the Authority is a Magistrate. The

proceedings before the Authority will be treated on par with Civil Courts.

Awarding compensation is a matter that should be considered on Merits it

cannot be considered without any rhyme or reason. Ten times is the outer

limit. Such maximum limit can be awarded where the authority was of the

view that the employer has paid less wages than the prescribed maximum

and had done so inspite of demand from employees or any officer resulting

in payment of less wages then the prescribed and the employees never a

grievance of it. The court reduced the amount of compensation from 10

times to the amount equal to deficit wages.[ ]

In the case S. Ponnambalan v. Deputy Labour Commissioner[ ] workmen

claimed 1073 as difference in wages due and actually paid `500 as

compensation. The authority awarded difference in wages of 1073 and

compensation of `3235 (total `4308). The high court held that authority can

award compensation more than what the workmen claimed as the court has

public accountability.

CONSTITUTIONAL VALIDITY OF SECTION 20(3)(i)

In the case of Chief Officer, Bhavnagar Nagarpalika v. Meghjibhai Ugarbhi[ ]

the constitutional validity of section 20(3)(i) of the Act. The Court held that

section 20 of the act is expected that the authority under section 20 of the

act will decide allies between the employer and employs with respect to any

dispute arising an account of non compliance of the relevant provisions of

the act regaling fixation of the rate of minimum wages. Such a power was of

judicial nature and parity the corrector of judicial power. The authority has to

adjudicate upon the rival of conflicting claim reside before it the authority

has been vested with certain power under the relevant provision contained

in Cr. P. C. It has also made a court to facilitated its effective functioning. The

authority under section 20 (3) before the reaching a conclusion has to hear

to party concerned. It was also enjoined to make such further inquiry and

such necessary for the purpose of deciding and awarding compensation. The

condition of hearing and making further investigation are sufficient

guidelines for the exercise of power. The argument under section 20 (4) of

the act, the penalty of the employee is only upto RS. 50 and on the employer

up to ten times of the excess amount and hence, discriminatory was also

rejected by the court. The court held that considering the capacity of the

workman and the employer to pay the penalty, the provisions are not

discriminatory in section 20 (3)(i) was valid.

MALICIOUS AND VEXATIOUS CLAIMS

SECTION 20(4) OF MINIMUM WAGES ACT, 1948

Section 20 of the Act provides simple and effective mechanism for

employees to receive minimum wages from their employers. The section

also provides some safeguards to prevent misuse of the provision by

mischievous and misguided people by the way of this section i.e. Section

20(4) of the Minimum Wages Act, 1948.

Section 20(4) reads as follows:

“If the authority hearing any application under the section is satisfied that it

was either malicious or vexatious, it may direct that a penalty not exceeding

fifty rupees be paid to the employer by the person presenting the

application”

RECOVERY OF THE AMOUNTS FROM PARTIES

SECTION 20(5) OF MINIMUM WAGES ACT, 1948

The method of recovering the amounts required to be paid by section 20 is

provided by sub-section (5) of section 20, which reads as follows:

“Any amount directed to be paid under this section may be recovered –

(a) if the authority is a Magistrate by the authority as if it were a fine

imposed by the authority as a Magistrate or

(b) if the authority is not a Magistrate by any Magistrate to whom the

authority makes application in this behalf as if it were a fine imposed by such

Magistrate. “

The section classifies the Authorities as Magistrates and non-Magistrates can

recover the amounts directed to be paid by him as if it was a fine imposed by

him in the capacity of a Magistrate. In case the Authority happens to be a

non-Magistrate, he has to require a Magistrate to require a Magistrate to

recover the amounts as if the amounts were imposed by him as a fine.

In both the cases only these amounts that were directed to be paid under

section 20 by the Authority appointed under section 20 (1) of the Act can be

recovered under these provisions. To recollect those amounts are:-

(1) The difference between the minimum wages payable under the Act and

actually paid (Section 12(1)-

(2) The wages for working on the days of rest [Section 13(1)(b) or (c)].

(3) Over time wages (Section 14).

(4) Compensation [Section 20(3)(i)]

(5) Penalty for filing malicious and vexatious applications by the employees

or their unions or labour inspectors or the legal practitioners (Section 20 (4)

& Section 20 (2)).

The directions given by the Authority need not be published in the official

Gazette to become enforceable as in the case of an award of the Industrial

Disputes Act.

The Authority under section 20 of the Minimum Wages Act should go into the

objections of the employer and decide as to how much amount was payable

to the workman before he sends his request the Magistrate to recover the

arrears of wages under section 20 (5) (b) of the Act.[ ]

The direction of the Authority that the employer should deposit first before

the Authority the amount due to the employee, so that it may be paid to the

employee concerned was upheld.[ ]

In the case of State of Rajasthan v. Mohan Singh and others[ ] it was held

that provision of Act does not inhibit employer to pay more under a contract,

where an employee gets more than minimum prescribed, the provisions of

Act would not apply and such employee cannot claim any benefit under the

act.

In the case of Robert Toppo v. State of Jharkhand and others[ ] it was held

that no provision in the Act or in the rules states that ‘Sramdan’ should not

be treated as labour.

In the case of Tamil Nadu spinning Mills Association, Dindigul v.State of Tamil

Nadu[ ] it was held that workers in Textile industry could not be said to be

non-sweated labour. It also held that government has power to add any

other employment in respect of which it thinks that minimum rate of wages

should be fixed under the Act.

AUTHORITY OF CIVIL COURT

SECTION 20(7) OF MINIMUM WAGES ACT, 1948

For the purpose of taking evidence and enforcing the attendance of

witnesses and compelling the production of documents, the authority

appointed under section 20 (1) of the Act was deemed to be a civil court. The

section 20(7) of Minimum Wages Act reads as follows:

“Every authority appointed under sub-section (1) shall have all the powers of

a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the

purpose of taking evidence and of enforcing the attendance of witnesses and

compelling the production of documents and every such authority shall be

deemed to be a civil court for all the purposes of section 195 and Chapter

XXXV of the Code of Criminal Procedure 1898 (5 of 1898).”

Once it is held that the person functioning as Authority is persona designata

he will not fall within classification as an inferior criminal court while

discharging the functions unde the act. Then it follows that the ordes passed

directions given unde the act by him are not amenable for correction in

exercise of its revisional power under the code.[ ]

AREAS NOT COVERED BY SECTION 20 OF MINIMUM WAGES ACT, 1948

Section 20 is not available for recovery of arrears of wages. This section is

available for recovery of wages, balance of wages, wages for overtime work

etc., due under a notification issued by appropriate govt. under the Minimum

Wages Act.[ ]

If there is no dispute as to the rates of wages between the employer and

employee and the only question was whether a particular payment at the

agreed rate was due or not then Section 20 of the act would not be attracted

at all and the appropriate remedy would only be wither section 15(1) of the

Payment of Wages Act or Section 33-C(2) of the Industrial Disputes Act.[ ]

The question whether a person should be categorized and placed in a

particular category having regard to the nature of the work that he performs

in an establishment was necessary in a matter of industrial relations and in

many cases where large no. of workmen are involved require a technical

approach to the problem. Again it would also be necessary to consider

whether in the establishment of the question so many more technical people

in the higher grade are at all required for doing the work. It was impossible in

a summary jurisdiction under section 20 of the Minimum Wages Act, where

the order is not even capable to review, to decide such important matters

which may have far reaching consequences to the employee and employer. [

]

CONCLUSION

Thus, section 20 of Minimum Wages Act, 1948 provides simple cheap and

quick method of settlement of employees’ claims. The scheme of the Act

shows that it was intended to create an exclusive and a special jurisdiction

providing an effective and cheap remedy to workmen to recover their dues

under the Act. The procedure was summary in nature. The Authority was to

hear the parties and hold such enquiry as it deems proper and give

directions. The direction it issues was final for all the purposes and the order

was not appealable.

The assumptions made before the research are fulfilled i.e. the procedure for

adjudication covers the principles of Natural Justice. Another assumption

related to constitutional validity of Section 20(3)(i) is justified and is

considered as valid as interpreted by Hon’ble Supreme Court in a precedent.

Wages means all remuneration capable of being expressed in terms of

money, which would, if the terms of contract of employment, express or

implied, were fulfilled, be payable to a person employed in respect of his

employment or of work done in such employment. It includes house rent

allowance but does not include the value of any house accommodation,

supply or light, water, medical attendance or other amenity or service

excluded by general or special order of appropriate Government;

contribution paid by the employer to Pension/ Provident Fund or under

scheme of social insurance; traveling allowance or value of traveling

concession; sum paid to the person employed to defray special expenses

entailed on him by the nature of his employment; or any gratuity payable on

discharge.

BIBLIOGRAPHY

Books Referred:

1. Sen Ratna, Industrial Relations: Text and Cases, (New Delhi: Macmillan

Publishing House) 2nd Edition.

2. Misra S.N., Labour and Industrial Laws, (Allahabad: Central Law

Publications) 2009.

3. Singh Avtar Dr., Introduction to Labour and Industrial Law, (Nagpur:

Lexisnexis Butterworths Wadhwa) 2008.

4. Paul Meenu, Labour and Industrial Law, (Allahabad: Allahabad Law

Agency) 2007.

5. Rao S.B., Law and Practice on Minimum Wages, (Allahabad: Law Publishing

House) 2008.

6. Raval Kaushik C. and Krishnapal Malik, An Introduction to Labour Laws,

(Ahmedabad: Mahatma Gandhi Labour Institute) 2008.

Websites Referred:

• www.etymonline.com

• www.managementparadise.com

Presidential Pardon – Theory and conceptPrint this

TABLE OF CASES

AMERICAN CASES 1. B. v. Boyes, (1861) 1 B & S 31’1 (A). In — (1861) 1 B & S 311 (A).

2. Burdwick v. United States, 236 US 79; 59 L.ed. 476.

3. Ex parte Garlandv, 71 U.S. 333 (1866).

4. Ex parte Grossman, (1924) 69 Law Ed 527 (F).

5. Knote v. United States, (1877) 24 Law Ed 442.

6. United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871).

7. United States v. Wilson 32 U.S. 150 (1833).

INDIAN CASES 1)      Ashok Kumar v. Union of India, (1991) 3 SCC 498.

2)      Harbans Singh v. State of Punjab, 1987 Cri LJ 1088.

3)      Harbans Singh v. State of U.P., AIR 1982 SC 849.

4)      Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.

5)      In Re: Maddela Yerra Channugadu and Ors , MANU/TN/0394/1954.

6)      Javed Ahmed v. State of Maharashtra, (1985) 1 SCC 275.

7)      K.M. Nanavati v. State of Bombay, AIR 1981 SC 112.

8)      Kehar Singh v. Union of India, (1989) 1 SCC 204.

9)      Krishnan Nair V. State Of Kerala, 1983-(CR1)-GJX -0321 -KER

10)  Kuljit Singh v. Lt. Governor of Delhi, AIR 19782 SC 774.

11)  M. T. Khan v. The Government Of Andhra Pradesh And Others, 1996-

(CR2)-GJX -0432 –AP.

12)  Madhav Shankar Sonawane v. State of Maharashtra, 1982-(CR1)-GJX -

0161 –BOM.

13)  Madhu Mehta v. Union of India,1989Cri.L.J. 2321.

14)  Maru Ram v. Union of India, (1981) 1 SCC 107.

15)  R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.

16)  Ramdeo Chauhan v. State of Assam , (2001) 5 SCC 714.

17)  Shashi Alias Shashidharan And Others v. State Of Karnataka And Others,

2000-(CR1)-GJX -0625 –KAR.

18)  Sher Singh v. State of Punjab,1983 SCC(Cri) 461.

19)  State of Madhya Pradesh v. Ratan Singh, (1976) SCC (Crl) 428.

20)  State of Punjab v. Joginder Singh, 1990 Cri. L.J. 5.

21)  T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

22)  The Deputy Inspector General of Police, North Range, Waltair and

Anr. v. D. Rajaram and Ors, MANU/AP/0162/1960.

23)  Triveniben v. State of Gujarat, (1989) 1 SCC 679.

TABLE OF STATUTES

1)      Code of Criminal Procedure, 1973.

2)      Indian Penal Code, 1860.

3)      The Constitution of India, 1950.

Introduction

“A Pardon is an act of grace, proceeding from the power entrusted with the

execution of laws, which exempts the individual on whom it is bestowed from

the punishment the law inflicts for a crime he has committed”[1]

The power to pardon is one of the powers which have been conferred on the

executive. Article 72 confers this power on the President and Article 161

does the same on the Governor. This power has been provided to heads of

various nations. In monarchies this power is vested with the Kings of those

countries and it has been exercised for centuries, but with the passage of

time and the changing nature of constitutional law it has taken a new form

now. In earlier times it was used by the Kings for their political gains, it

helped them in generating revenues. While the modern day understanding

and use of pardon power is more often associated with notions of mercy and

fairness, this analysis will demonstrate that it also remains squarely in the

political arena. Called pardons, amnesties, clemency, “grace” (as in, for

example, Monaco), or mercy (as in Sweden), the pardon power is included in

the written constitutions of nearly all countries.

The are various reasons for the study of this area. The President’s power to

pardon deals with providing justice which is essentially a function of the

judiciary. The reasons for this interference of the executive in the functions

of the judiciary have to be explored, understood and appreciated because it

is a obvious exception to the doctrine of separation of powers which is one of

the most eminent doctrines in the Constitution of India. The executive gives

an absolute power of pardon to the executive. The likelihood of abuse of

such a power is immense. Therefore, an analysis of case law with regard to

presidential pardon is very important. Pardon is a concept based on mercy,

therefore, mercy as a concept has to be studied and the question why mercy

is vested with the executive and not with the judiciary has to be looked into.

In the process of answering these questions the researcher also intends to

look into some other aspects of this power. One such aspect is to look into

the wording of the Article. It is very important to note the way the Courts

interpret various Articles and what was the intention behind framing such an

Article. There are different ways in which an Article or a Section can be

interpreted. The importance of wording of Article and its interpretation can

be best understood by looking at Article 21 of the Constitution. The nature

and scope of this Article has changed drastically after the Court has started

to look at the Article in a broader manner. Similarly looking at this article’s

words helps us to understand in a better manner. In addition to this there are

other issues as well like  foreigners applying for pardon, judicial review of

pardon and the guidelines for exercise of pardon power. The researcher has

made an effort to discuss all these issues to get a complete understanding of

the issue.

Research Methodology

Aims and Objectives The aim of this research paper is to explore the concept of Presidential

pardon. It is tried by the researcher to explore all the possible aspects

related to this area.

Scope and Limitations The scope of the topic is limited to the Executive’s power to grant pardon.

Since, this project is a conceptual analysis the scope is not limited to the

Indian position of law. It deals with the related aspects of English and

American law. This project does not deal with definitional challenges and

related aspects of clemency under the Code of Criminal Procedure,1973.

Research Questions Where and how did the concept of pardon originate?

What is the nature of Presidential pardon?

What is the current position of law regarding Presidential pardon?

What has the judicial response been to Presidential pardon?

What are the most controversial issues regarding Presidential pardon?

What steps can be taken to control abuse of this power?

Chapterisation This research project has been divided into two heads:

The First part deals with the nature of pardon in other countries. it looks at the

law in  England and America. It also takes a look at the case law development

in U.S.A.

The second part is divided into 13 sections.

The first section deals with the Constitutional history of the pardoning power.

The next section takes a look at the constitutional provisions related the

President’s and Governor’s power to pardon.

The next section explores the various reasons for the need of this power.

Fourth section takes a look at the wording and the interpretation of the Article.

This section tries to look at the distinction between pardon and the concept of

amnesty.

Sixth section looks into the principles of natural justice and its application to

Article 72.

Seventh section looks at setting a time frame for the exercise of this power.

Next section discusses the case of Presidential Self-Pardons.

Ninth section goes into the issue of foreigners applying for pardon.

Tenth section looks at the impact of other statues on Article 72 and Article

161.

Next section discusses the concept of judicial review and its application to

Article 72.

Twelfth section looks at the judiciary and its response towards Article 72.

The last section deals with some other aspects of this power, like contempt of

court, legislative limitations and guidelines for the exercise of this power.

Style of Writing

The style of writing used by the researcher is descriptive and analytical.

Mode of Citation

A uniform mode of citation has been followed throughout the project.

Sources of Data

Primary sources as such case laws have been used for the purpose of writing

the project. Secondary sources such as books, articles and internet have also

been used.

Presidential Pardon In other Countries

The pardon power of the executive has its roots in the English history. The

ancient English theory with respect to executive pardon is that all powers of

government originate from the King, that it was the King’s peace or the

peace and good order of the King’s realm which was offended by crime;

hence, the King could bestow his mercy by pardon[2]. Meanwhile the

American theory is established upon the principle that all governmental

power is inherent in the people. Hence, crime is an offence against the

people, prosecuted in the name of the people, and the people alone can

bestow mercy by pardon. As subsequently is noted, the people may confer

the pardoning power upon any officer or board that they see fit[3].

To understand the concept of president’s power in India it is important to

look at the pardoning power in England and also in the United States of

America. The British Crown enjoys the privilege to grant pardon to any

criminal. However it is not an absolute privilege, it is to be done under

ministerial advice. However, this power is immune to the concept of judicial

review. There is no time specified to grant pardon, it can be done before

conviction as well as after it. The Crown also has the power to grant reprieve

as well, it may just temporarily suspend the execution of the sentence; or

may remit the whole or part of the penalty.[4]

In United States of America, the President derives this power to grant pardon

from Art. II, Sec. 2(1).[5] This power is unlimited and can be exercised in

case of all the offences with the exception of impeachment. There is no time

frame for the exercise of this power; it may be exercised at any time after

the commission of the suit. Like England there is no judicial review of this

power. However, in addition to that there is no legislative control as well. It is

not considered to be a private act, but it is included in the constitutional

scheme. Now the researcher would like to see at the development through

case laws.

In United States v. Wilson[6] Chief Justice Marshall, speaking for the Court,

said: ”As this power had been exercised from time immemorial by the

executive of that nation whose language is our language, and to whose

judicial institution ours bear a close resemblance; we adopt their principles

respecting the operation and effect of a pardon, and look into their books for

the rules prescribing the manner in which it is to be used by the person who

would avail himself of it. A pardon is an act of grace, proceeding from the

power entrusted with the execution of the laws, which exempts the

individual, on whom it is bestowed, from the punishment the law inflicts for a

crime he has committed. It is the private, though official act of the executive

magistrate, delivered to the individual for whose benefit it is intended, and

not communicated officially to the Court. . . . A pardon is a deed, to the

validity of which delivery is essential, and delivery is not complete without

acceptance. It may then be rejected by the person to whom it is tendered;

and if it be rejected, we have discovered no power in a court to force it on

him.’ Marshall continued to hold that to be noticed judicially this deed must

be pleaded, like any private instrument.

The next case which came in front of the Court was that Ex parte Garland[7].

The Court talking about pardon said that, A pardon reaches both the

punishment prescribed for the offence and the guilt of the offender; and

when the pardon is full, it releases the punishment and blots out of existence

the guilt, so that in the eye of the law the offender is as innocent as if he had

never committed the offence. If granted before conviction, it prevents any of

the penalties and disabilities consequent upon conviction from attaching;  if

granted after conviction, it removes the penalties and disabilities, and

restores him to all his civil rights; it makes him, as it were, a new man, and

gives him a new credit and capacity. In United States v. Klein[8], it was held

that the constitution has given separate powers to all the three branches of

government, and if legislature makes a statute which limits the power of the

executive to pardon a person from an offence committed by him, then it

such a case it is infringing upon the power of the executive by the

legislature, and thus it would be unconstitutional. Meaning therefore, that

there can be no legislative control over the pardoning power of the

executive.

The issue related to the civil and political rights of the offender was

discussed in the case of Knote v.United States[9]. The court said that once

the pardon has been granted to a particular person, then all his civil and

political rights are restored, which were suspended earlier. However, the

court said that the person cannot be compensated for the loss he suffered

during the time of confinement.

Pardoning Power in India

Constitutional History

Before the commencement of the Indian Constitution, the law of pardon in

British India was the same as in England since the sovereign of England was

the sovereign of India. The Government of India Act, 1935, recognized and

saved the right of the Crown or by delegation to Governor-General to grant

pardons, reprieves, respites or remissions of punishment. Section 295 of the

Act, 1935, had conferred on the Governor-General acting in discretion power

to suspend, remit or commute sentences of death. The prerogative of the

Crown was also delegated to the Governor-General by the Letters Patent

creating his office, empowering him to grant to any person convicted by any

criminal offence in British India, a pardon either free or subject to such

conditions as he thought fit[10].

In India, the power to pardon is a part of the constitutional scheme. The

Constitution of India conferred the power on the President of India and the

Governors of States[11].

Constitutional Provisions

Art . 72(1) of the Indian Constitution confers the power on the President to

grant pardons and commute sentences in the following cases:

In all cases where the punishment or sentence is by a Court Martial

An all cases where the punishment or sentence is for an offence against any

law relating to a matter to which the executive power of the Union extends

In all cases where the sentence is a sentence of death

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by

law on any officer of the Armed Forces of the Union to suspend, remit or

commute a sentence passes by a Court Martial.

Art. 161 is the corresponding provision relating to the mercy jurisdiction of

the President, under Art. 72. under this Article the Governor has the power to

grant pardons etc., and to suspend, remit or commute the sentence of any

person convicted of any offence against any law “ relating to a matter to

which the executive power of the State extends”. The executive power of the

state extends to matters with respect to which the legislature of the State

has the power to make laws.[12]

Reasons behind Pardoning Power

The pardoning power is in derogation of the law. Implying that if laws could

always be enacted and administered so they would be just in every

circumstance to which they are applied, there would be no need for the

pardoning power[13]. Therefore, the power to pardon is meant to be used in

those circumstances where it would not be in the interest of justice to strictly

apply the law even if the circumstances call for the same. Executive

clemency exists to afford relief from undue severity or plain mistake in the

operation or enforcement of the criminal law. The administration of justice by

the Courts is not necessarily always wise or certainly understanding of

circumstances, which may properly alleviate guilt. It is a check entrusted to

the Executive for special cases[14].A country would be most imperfect and

deficient in political morality without a power for clemency[15].

Wording of the Article

It is very important to look at three words to understand the correct

interpretation of the article. These three words are ‘punishment’, ‘sentence’

and ‘offence’. The first two words show that the pardon by the President will

save a person from the consequences of an offence and from a punishment

as well. The researcher at first would like to look at the word ‘offence’.  The

manner in which it is used makes it quite evident that that the punishment

and sentence we spoke about are in respect of the offence committed. This

implies that the punishment which is supposed to be pardoned has to be in

respect of an offence and not for any simple breach of a condition.[16]

The reasoning that is given for the above said statement is derived from the

meaning of the word offence as it is given in the General Clauses Act, 1897.

[17] It is difficult to say that the same definition cannot be applied to Art.72

as well. It has been said that in reality it is this definition only which is used

in this Article. It is said that the power of pardon that has been granted, can

be used in following cases:

In respect of an act which, in the eyes of law, is an offence

Which offence is in respect of a matter over which the executive power of the

Union extends and

For which punishment has already been adjudged[18]

It is a well established principle that a person can be sentenced or punished

only when he has been convicted by the court. A person is deemed to be

innocent unless it is proved in the eyes of the law.[19] Thus if a person has

not been given a chance of a fair trial or a proper investigation has not been

carried out against that person, then there is no reason why that person

should be given a pardon, because he is still innocent. Therefore, it is

important to note that the pardoning power can be exercised only in the

case of a convicted person only.

However, in some of the cases the Court has said that the pardon can be

granted even before conviction or trial by a Court. This principle was laid

down in the case of In Re: Maddela Yerra Channugadu and Ors[20], it was

said in the case,  “The pardon power includes not only that of granting

absolute and unconditional pardons, but also that of commuting a

punishment to one of a different sort than that originally imposed upon a

person. It may be exercised at any time after the commission of an offence,

either before legal proceedings are begun or during their pendency, and

either before or after conviction.” This decision was affirmed later in the

cases of K.M. Nanavati v. State of Bombay[21] and and Ramdeo

Chauhan v. State of Assam[22]

Now let us look at another situation, if the trial of a person is held not by

courts but by a tribunal. Can we say that the act for which the trial has taken

place in the tribunal is also an offence? The general situation will be that of

non-compliance of the terms of a certain contract and therefore, termination

of the same.  The answer would be no, as in such a case the term, ‘breach of

conditions’ is used and not the word offence. To be more precise, the word

offence can be used only in the case when the act done falls within the scope

of the word offence as it is defined in the Indian Penal Code. In addition to

this it is important to note that the person should be inquired under Code of

Criminal Procedure, because if it is done under an Act which does not

characterize the act as an offence, then the word punishment would not hold

the same meaning as it is meant to be in Art.72. This issue has been

discussed in Maqbool Hussain v. State of Bombay[23].

The same issue was discussed in S.A. Venkataraman v. Union of

India[24], the Court in this case held that before Art.20(2) could be invoked,

it is essential that the earlier prosecution must have been under the Act

which created that offence. After looking at these two cases it is evident that

before the question of the exercise of the power of the President to grant

pardons can arise the person to whom pardon is granted must have been

awarded punishment or sentenced by a competent court of law or judicial

tribunal.

Distinction between Pardon and Amnesty

The issue that is discussed under this head is that whether there is a

difference between amnesty and pardon. Taking the situation of revolts, in

such cases the head of the state makes a proclamation that the rebels who

surrender would be granted pardon and all their offences will be omitted.

Can we say here that the President has the power to do so under Art.72? If

we look at the situation more closely then we can see that irrespective of the

words used by the President in the proclamation actually does nothing more

than giving a promise to the rebels. Therefore, even if the word pardon has

been used in the proclamation, in actual the action of the head of the state

does not amount to pardon from a punishment. The reason being, at the

time of the issue of declaration no person would have been awarded any

punishment. As said earlier that it is important to prove a person guilty

before he can be granted pardon, it is important to prove that a person has

participated in a rebellion. Therefore, before granting pardon it is important

to prove in the Court that the person has participated in the rebellion.

Pardon is granted to a specified individual while the promise not to take

action on the rebels surrendering arms is addressed to an unspecified body

of rebels. Such an action therefore may not be termed grant of pardon in the

sense in which the expression is used in Art 72. Thus the President does not

have the power of granting amnesty to rebels. This power is vested only with

the Parliament. It is important to note that the power given under Art. 72 is

not unlimited, it is only in respect to the offences mentioned in the sub-

clause (a), (b) and (c) of clause 1 of the Article. The President can exercise

his power only in respect of the subjects to which the executive power of the

union extends. Thus, it is clear that pardon and amnesty differ in their import

and therefore amnesty does not fall within the ambit of Article 72.

Natural Justice and Pardoning Power

There is a big question that whether the principles of natural justice be

applied to Art. 72 and Art.161. The researcher at first would look at the

arguments favouring the application. Though the power to grant pardon is

executive, it is more quasi-judicial in nature.[25] A quasi-judicial body would

impose a duty to act fairly.[26] The Supreme Court has held that the

constitutional safeguard enshrined in Article 21 extends to the executive

disposal of mercy petitions.[27] As a part of the constitutional scheme,

Article 72 is subject to the discipline of Article 21. Therefore, the accused

should have a minimal right to fair hearing.[28]

On the other hand there have been cases in which the Court has said against

the application of natural justice. The Supreme Court has held in Harbans

Singh v. State of Punjab[29] that the power of the government is executive

in nature and the principles of natural justice cannot be grafted thereon by

means of judicial innovations and activism. Since the principles of natural

justice have been applied at each stage of the sentencing procedure, it may

legitimately be done away with at the executive stage.

Time Frame for the Exercise of Power

Even in this area there is a debate as to whether we can have a time frame

for the exercise of the pardon power. The Supreme Court has taken both the

stands and the researcher would present both the view points. It has been

observed by the Supreme Court that a period of anguish and suffering is an

inevitable consequence of sentence of death but a prolongation of it beyond

the time necessary for appeal and consideration of reprieve is not.

Keeping in mind the stand taken by the Court, it can be inferred that the

Supreme Court is of the view that delay in the decision of the President

causes avoidable mental agony and suffering to the convict. Therefore, to

contain such unnecessary harm to the convict there should be a time frame

during which the executive has to give its decision.

Article 21 demands that any procedure, which takes away the life and liberty

of persons, must be reasonable, just and fair. This procedural fairness is

required to be observed at every stage and till the last breath of the life. If

there has been an inordinate delay in the disposal of a mercy petition then

procedural fairness is vitiated and Article 21 is violated[30]. Therefore, there

should be a time frame for the disposal of a mercy petition.

However, there is a different pint of view as well. In this the Court has taken

a different stand from that taken by the Court in earlier cases. The time

taken by the executive for disposal of mercy petitions may depend upon the

nature of the case and the scope of enquiry to be made. It may also depend

upon the number of mercy petitions submitted by or on behalf of the

accused[31]. Moreover, no fixed delay can be considered a fixed period[32].

The court, therefore, cannot prescribe a time limit for disposal even of mercy

petitions.

The Case of Presidential Self-Pardons

This is another issue which needs to be looked at, whether the executive has

the power to grant self-pardons. The problem with the act of self-pardon is

that it is likely to undermine the public’s confidence in Presidency and the

Constitution. It is also against the principles of natural justice, that a person

should judge himself. In the case of Calder v. Bull[33], the Supreme Court

expressed its view against allowing a person to be self-judge.[34] In one of

his writings Madison wrote that, “ No man is allowed to be a judge in his own

cause, because his interest would certainly bias his judgment, and not

improbably, corrupt his integrity.”[35]

The same principle was followed later in the case

of Spencer v. Lapsley[36], in addition to these judgments there has been

various other cases which unanimously state the principle that no man shall

be judge in his own case. The case indicates that not only is this a venerable

principle of philosophy and history, it is an essential part of the structure of

our constitutional government.

Like other issues this one also has the other side of the argument where one

can argue that self-pardon can be exercised. As held by the Supreme Court

in a number of judgments, the President has to act on the advice of the

council of ministers while granting pardon. Now, since the council of

ministers can be tried and put on trial for a criminal offence the question,

which arises, is whether they can pardon themselves. Article 72 of the

Constitution creates no exception to the President’s power to pardon in order

to invalidate self-pardons. Therefore, theoretically, a self-pardon by the

council of ministers is very well possible.

Foreigners and the Pardoning Power

The procedure for making mercy petitions has been laid down in sub-

paragraph VIII of Paragraph A of the “Procedure regarding petitions for

mercy in death sentence cases.”. Petitions for mercy submitted on behalf of

a convict under sentence of death shall be dealt with mutatis mutandis in the

manner provided by these instructions for dealing with a petition from the

convict himself. The petitioner on behalf of a condemned convict shall be

informed of the orders passed in the case.[37] If the petition is signed by

more than one person, it shall be sufficient to inform the first signatory. The

convict himself shall also be informed of the submission of any petition on

his behalf and of the orders passed thereon.”

From a perusal of the aforesaid paragraph, it can be seen that there is no bar

to foreigners making petition for mercy to the President of India on behalf of

any of the convicts. Looking to the very nature of the power to grant pardon

or clemency, applications or petitions for mercy by foreigners will have to be

considered on the same footing as those submitted by Indian citizens. In

light of the above, it can be inferred that there is nothing to bar a foreigner

from applying for mercy.

Art. 72 and Impact of other Statutes

The conflict of Art .72, with another statute, came before the Court in the

case of Maru Ram v. Union of India[38]. The issue in this case was, whether

S. 433-A of Criminal Procedure Code, would affect the Art.72 and Art.161 of

the Constitution. It was argued that since Sections 432 and 433-A, are

stautory provisions, and modus operandi of the Articles 72 and 161,

therefore it would render Article 433-A ineffective. The reason for this was

that, it was different from the other two sections and therefore it would be

against the Constitutional Provisions. However, the court held that although

the powers under Art. 72 and Art. 161 and Sections 432 and 433-A may be

similar, but they are not identical.

This decision was later affirmed in Ramdeo Chauhan v. State of Assam[39] ,

it was held that the power under Article 72 and Article 161 of the

Constitution is absolute and cannot be hampered by any statutory provisions

such as Section 432, 433 and 433-A of the Code or by any prison rules. A

similar question came up before the Court in the case of Madhav Shankar

Sonawane v. State of Maharashtra,[40] here the issue was that whether

Section 307 of the Indian Penal Code, read with Section 34 of the Indian

Penal Code, which has a sentence of minimum of 25 years after conviction,

places a limitation on the exercise of power under Art.72. The Bombay High

Court in the above case held that it is not allowed to the Courts to hold that a

convict shall have to undergo a minimum period of sentence even with an

exercise of constitutional jurisdiction by high constitutional functionaries

under Article 72 and 161. After looking at all these cases, it can be concluded

that in n o situation can any legislation place a limitation on the power under

Art. 72 and Art. 161.

Judicial Review of Article 72

Supreme Court in Maru Ram v. Union of India[41], said that the power of

pardon, commutation and release under Art. 72 and Art. 161 , “ shall never

be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and

equal execution are guarantors of the valid play power.” In Kehar

Singh v. Union of India[42], it was said that the order of the President cannot

be subjected to judicial review on its merits except within the strict

limitations defined in Maru Ram’s[43] case. Looking at these cases, the Court

did not actually call for judicial intervention. However, in Swaran

Singh v. State of U.P[44], the Supreme Court invalidated the remission of

sentence by the Governor because some material facts were not brought to

the knowledge of the Governor. Not only this , the Supreme Court had asked

the President to reassess his decision when it was of the view that the

decision of the President was totally arbitrary and unfair[45].

In another case the Governor decided to grant pardon to 66 life convicts and

there was a petition under Article 226 by 10 other convicts claiming that

their cases satisfied the criteria relied upon by the Governor in granting

concession, it was held that it is for the Governor, on the suggestions of

concerned authorities, to deal with remissions of punishment or to commute

the sentence.  It was held that the High Court cannot appropriate the power

of the Governor in a petition under Article 226 of the Constitution and grant

pardon to the petitioners[46]. It is clear from the above case that the Court

cannot usurp powers to grant pardon itself based on the criterion followed by

the President and can in no circumstance reverse the decision of the

President. Therefore we can conclude that the Courts can exercise judicial

review over the exercise of pardon in a very limited sense to correct an

unfair or arbitrary decision.

Pardoning Power and Judiciary

The President while exercising the power under Article 72 can go into the

merits of the case notwithstanding that it has been judicially concluded by

the consideration given to it by the Supreme Court. The power under Article

72 entitles the President to examine the record of evidence of the criminal

case and to determine for himself whether the case is one deserving the

grant of the relied falling within that power. He can, on scrutiny of the

evidence on record in the criminal case, come to a conclusion different from

that recorded by the Court in regard to the guilt of, and sentence impose on,

the accused. In doing so, the President does not amend or modify or

supersede the judicial record. The judicial record remains intact, and

undisturbed. Therefore, there is no interference with the functions of the

judiciary. The administration of justice by the courts is not necessarily always

wise or certainly considerate of circumstances, which may properly mitigate

guilt. To afford a remedy, it has always been thought essential in popular

governments, as well as in monarchies, to vest in some other authority than

the courts, power to improve or avoid particular criminal judgments. It is only

a check entrusted to the Executive for special cases. It is clear that the

powers vested in the President of India under Art. 72; in the Governor under

Article 161 of the Constitution and in the State Government under S. 401 of

the Cr.P.C. are essentially executive powers of mercy which operate in

completely different fields. The trial of criminals and the passing of

sentences are purely in the domain of the judiciary whereas the execution of

sentences is purely with the Executive Government. Thus it is clear that the

orders under Article 72 are essentially and basically executive orders in a

completely different field[47]. The Head of the Executive exercises his

powers of mercy under the Constitution commonly known as ‘mercy

jurisdiction’. Since, no such powers are vested with any judicial organ; there

can be no infringement upon its functions[48].

Some Other Aspects of Pardon Power

Contempt of Court

The Pardoning power of the President extends even to criminal contempt of

court , the reason for this being, it does not produce a different effect from

the exercise of mercy jurisdiction in other circumstances. This principle was

laid down in the case of Ex parte Grossman[49]

Legislative   Limitations on Pardoning Power

One of the  possible ways through which the legislature can keep a check on

the limitless power of the President is the process of impeachment. However,

it is important to  consider that whether the abuse of the pardon power is a 

high crime or a misdemeanour  But, the impeachment limitation suffers from

the same defects as the current restrictions–it is useless against the

President who grants a questionable pardon in the midnight hours of his

second term. Thus, impeachment likely will not serve as a check on the

President’s use of the pardon power .Looking at the other ways the it can be

said that a constitutional amendment is the only method where legislature

could expressly limit the clemency power of the executive. Other legislative

options exist that would not limit the President’s power to grant pardons but

instead would diminish the need for clemency.

Guidelines For Exercise of Power

The pardoning power should never be arbitrary and mala fide. Hence, the

power to pardon, commute or remit is subject to guide-lines. The question as

to whether the case is appropriate for the exercise of the power conferred by

Article 72 depends upon the facts and circumstances of each particular case.

Therefore, it is not possible to have guidelines for the exercise of such

power[50]. We cannot have a set of rules to be applied in all the cases. 

There is adequate indication in the terms of Article 72 and in the history of

the power protected in that provision as well as existing case law, and

specific guidelines need not be spelled out[51]. Since, the power is vested

with the Head of the Executive; it cannot be presumed that there shall be an

abuse of the power.

Conclusion

As seen that Presidential pardon is one of the powers that been given to the

executive by the Constitution. The researcher in his conclusion would like to

look back at the issues discussed and analyse them.

The first issue that the researcher would take up is the importance and

necessity of pardoning power. It is very important to have this power in

Constitution of all the countries. The reason for this being that there should

be some authority which should be present to keep a check and rectify the

mistakes made by the judiciary. The legislature can also do this, through a

process of passing a law. But, in the case of individuals it is not possible for

the legislature to pass a law. In such cases the executive can pardon the

individual. This process is also important because awarding death penalty to

someone is the highest punishment that can be awarded to anyone. Thus, it

is important to review it by the Head of the State.

There is a necessity on the part of the legislature to bring an amendment to

the constitution, to prevent the use of power in one’s own case. Meaning that

there should not be any self-pardoning.on the part of the executive. The

reason for this being that in such a case there would be a bias and abuse of

power will take place. It is also important to set a time frame for the exercise

of this power, this will help in early disposal of the cases. Judicial review of

this power is another issue which is debatable. The researcher is of the

opinion that this power should not be absolute, at the same time the

judiciary should not interfere with his power too much, it should only be done

in the case of arbitrariness and mala fide.

The principles of natural justice should be imbibed in the exercise of

clemency powers because: firstly, they do not affect the purpose of mercy

jurisdiction and secondly, through procedural fairness the scope of a bias is

reduced. There is no need for any guidelines to be set as the scope will differ

from case to case basis.

Bibliography

ARTICLES 1)      Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) 103.

2)      Brian C. Kalt, “Pardon Me?: The Constitutional Case Against Presidential

Self –Pardons”,106 Yale Law Journal 1996 779.

3)      Harold J. Krent, “ Conditioning the President’s Conditional Pardon

Power”, 89 California Law Review 2001 1665.

4)      Naveen Thakur, “President’s Power to Grant Pardon in Case of a Death

Sentence- Whether it is to be Unfettered Discretion?”, 1999 Cri LJ /Journal

101.

5)      P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999

69.

6)      Paul J. Haase, Oh my darling clemency”: existing or possible limitations

on the use of the Presidential pardon power” 39 Am. Crim L Rev. 1287.

7)      Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions :

Inadequacies in Practice”, 12Stud Adv (2000) 72.

8)      Scott P. Johnson, “White House scandals and the Presidential pardon

power:: Persistent  risks and prospects for reform”. New England Law

Review, Summer 1999.

9)      Upendra Baxi, “Clemency, Erudition and Death : The Judicial Discourse

in Kehar Singh”, 30J.I.L.I(1988) 501.

BOOKS

1)      Ed. Robert Blackburn, A Written Constitution for the United

Kingdom (Mansell : London, 1991).

2) H.M Seervai, Constitutional Law of India, Vol. 2, (N.M Tripathi &

Co. : Bombay, 1984).

3)      H.M. Marshall, Natural Justice (Delhi: Universal Publishing Co., 1996).

4)      Hellen and Gavin, Sourcebook on Public Law (Cavendish Publishing

Company : London, 1997).

5)      Mahendra P. Singh, V.N. Shukla’s Constitution of India (Eastern Book

Company : Lucknow, 2001).

6)      S.C. Jain, The Constitution of India-Select Issues and

Perceptions (Taxmann : New Delhi, 2000).

ENCYCLOPEDIA 1)      59 Am Jur 2d, Pardon and Parole.

2)      67A C.J.S Pardon and Parole.

[1] Burdwick v. United States, 236 US 79; 59 L.ed.476 at 480.

[2] 59 Am Jur 2d, Pardon and Parole at 10.

[3] Id.

[4] P.J. Dhan, “ Justiciability of the President’s Pardon Power”, 26 Indian Bar

Review 1999, at 69.

[5] It reads as, “ The President…..shall have power to grant reprieves and

pardons for offences against the United States, except in cases of

impeachment”.

[6] 32 U.S. 150 (1833)

[7] 71 U.S. 333 (1866)

[8] 80 U.S. (13 Wall.) 128, 147 (1871).

[9] 95 U.S. 149 (1877).

[10] P.J Dhan, “Justiciability of the President’s Pardon Power”, 26 IBR 1999

70-71.

[11] Id.

[12] V.N Shukla

[13] The Deputy Inspector General of Police, North Range, Waltair and Anr. v.

D. Rajaram and Ors, MANU/AP/0162/1960.

[14] S.C. Jain, The Constitution of India-Select Issues and

Perceptions 57(Taxmann : New Delhi, 2000).

[15] 59 Am Jur 2d, Pardon and Parole, 5.

[16] Balkrishana, “Presidential Power of Pardon”, 13 J.I.L.I (1971) at 104.

[17] The definition that has been given in the Act is,” An act or omission

made punishable by law for the time being in force”.

[18] Supra Note Balkrishna at 105.

[19] Art. 372, Constitution of India.

[20] MANU/TN/0394/1954.

[21] AIR 1981 SC 112. The Supreme Court has, however, created an

exception to the above rule in K.M. Nanavati’s case where it held that the

Governor cannot exercise his powers under Article 161 when the matter is

sub judice in the Supreme Court during the time Article 142 is in operation.

[22] (2001) 5 SCC 714.

[23] AIR 1953 SC 325. the Court in this case observed that in order that the

protection of Art 20(2) be invoked by a citizen there must have been a

prosecution and punishment in respect of the same offence before a Court of

law or a tribunal, required by law to decide the matters in controversy

judicially on evidence on oath which it must be authorised by law to

administer and not before a tribunal which entertains a departmental or

administrative enquiry. The very wording of the Art.20 would indicate that

the proceedings therein contemplated are of nature of criminal proceedings

before a Court of law or a judicial tribunal, in accordance with the procedure

prescribed in the statute which creates the offence and regulates the

procedure.

[24] AIR 1964 SC 375.

[25] R.Raghupathy v. State of Tamil Nadu, 1984 Cri LJ (NOC) 117.

[26] Poornima Sampath and Priyadarshini Narayanan, “Mercy Petitions :

Inadequacies in Practice”, 12 Stud Adv (2000) 72 at 74.

[27] T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

[28] Upendra Baxi, “Clemency, Erudition and Death : The Judicial Discourse

in Kehar Singh”, 30J.I.L.I(1988) 501 at 503.

[29] 1987 Cri LJ 1088.

[30] Triveniben v. State of Gujarat, (1989) 1 SCC 679.

[31] Triveniben v. State of Gujarat, (1989) 1 SCC 679; Sher Singh v. State of

Punjab,1983 SCC(Cri) 461.

[32]Madhu Mehta v. Union of India,1989Cri.L.J. 2321.

[33] 3 U.S.(3 Dall.) 386 (1798).

[34] The Court said that  a law that makes a amn Judge in his own cause…it

is against all reason and justice, for a people to entrust a legislature with

such powers; and, therefore, it cannot be presumed that they have done it.

[35] Brian C. Kalt, “ Pardon Me?: The Constitutional Case Against Presidential

Self Pardons”, 106 Yale Law Journal 1996 779 at 806..

[36] 61 U.S. (20 How.) 264, 266 (1857).

[37] Subhash C. Jain, “ The Constitution of India- Select Issues &

Perceptions”, Taxmann Publications Ltd., New Delhi, 2000) at 59.

[38] AIR 1980 SC 2147.

[39] (2001) 5 SCC 714.

[40] 1982-(CR1)-GJX -0161 –BOM.

[41] AIR 1980 SC 2147.

[42] AIR 1989 SC 653.

[43] AIR 1980 SC 2147.

[44] (1998) 4 SCC 75.

[45] Harbans Singh v. State of U.P., AIR 1982 SC 849. Facts: Three persons

were convicted of murder and sentenced to death. One of them was hung as

he did not file a special appeal. The one who filed a special appeal was

commuted and his sentence was reduced to life imprisonment. The third one

had appealed to the President for pardon and his appeal was rejected. On

the day he was to be hung he filed a special appeal.

[46] Shashi Alias Shashidharan And Others v. State Of Karnataka And Others,

2000-(CR1)-GJX -0625 –KAR.

[47] Hukam Singh v. State of Punjab, AIR 1975 Punj & Har 148.

[48] K. M. Nanavati v. State of Bombay, AIR 1961 SC 112.

[49] Ex parte Grossman, (1924) 69 Law Ed 527 (F).

[50] Kuljit Singh v. Lt. Governor of Delhi, AIR 19782 SC 774.

[51] (1989) 1 SCC 204,  Ashok Kumar v. Union of India, AIR 1991 SC 1792.

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Domestic Inquiry14. (1) An employer may, on the grounds of misconduct inconsistent with the

fulfillment of the express or implied conditions of his service, after due inquiry:

(a) dismiss without notice the employee; or

(b) downgrade the employee; or

(c ) impose any other lesser punishment as he deems just and fit, and where a

punishment of suspension without wages is imposed, it shall not exceed a period

of two weeks.

Section 14(1) above only mentions "due inquiry" but does not provide specific procedures as

to how an inquiry should be conducted. Initially employers especially those without proper

HR department, had to do what they thought best. Their actions had been challenged and

the Industrial Court had handed over numerous decisions on the necessity of holding

"domestic inquiry". The Industrial Court always held that natural injustice had not been done

if an employer did not hold an inquiry or proper inquiry and the Court would invariably rule

against the employer who failed to do this. It is an important principle that no employee

should be dismissed for misconduct unless the employee concerned has been given an

opportunity to defend himself or had been given an opportunity to be heard.

In order for a domestic inquiry to be properly held, certain procedure need to be followed.

Stated below are some guideline for a proper inquiry:

A. Serve on the employee alleged to have committed misconduct a letter containing:

1. Specific charge of the type of offence, the date, the time and place where the offence

took place. Also state which rules of company's rules or regulations have been

violated.

2. The date, the time and the place where he has to be present for the inquiry.

3. Inform him his right bring along witnesses if any;

4. If necessary, suspend him for no more than one weeks pending the inquiry.

B. Set up a panel comprising of

1. Chairman (should be a person not involved in the investigation of the offence)

2. Two independent panel members (may be employees from another department)

3. A prosecutor (may be a personnel officer in the HR department)

C. In the hearing:

1. The prosecution will begin first . He is to make out a case against the accused first by

producing witnesses who have direct knowledge of case;

2. The accused i.e. the employee alleged to have committed the offence, is allowed to

question (cross examine) each of the witnesses on the evidence they have given;

3. After that the accused will be asked enter his defence i.e. to tell his side of the story;

4. The accused may produce witness or witnesses to support what he has said;

5. The accused as well as his witnesses are subject to cross examination by the

prosecutor.

6. The chairman will guide the proceeding and to record the evidence in writing;

7. Tape-recording of the proceeding may be used.

8. Lawyers are not allowed to appear in this type of domestic inquiry but official of the

employee's union is allowed.

D. After the hearing.

1. The panel will discuss the hearing and study the evidence given by both parties;

2. The chairman will submit the panel's finding and recommendations to the

Management

E. Management's decision.

(a) dismiss without notice the employee; or

(b) downgrade the employee; or

(c ) impose any other lesser punishment as he deems just and fit, and where a punishment

of suspension without wages is imposed, it shall not exceed a period of two weeks.

My company is very small and I don't have enough staff and to form a panel for the

domestic inquiry, what shall I do?

1. You may seek assistance from your business associates

who are familiar in domestic inquiry to help you out;

2. You can engage labour consultancy firm to give you the

necessary advice for which you have to pay;

3. You may even ask the pastor of your church to be the

panel chairman.

The important thing is that NO MAN SHOULD BE CONDEMNED

WITHOUT BEING HEARD.

For details please refer to Section 14 of the Employment Act

Disciplinary Action   1997-‘98

REFERENCE:

Question HeldSK SINGVSCENTRAL BANK OFINDIA [1997(I) LLJ 537 SC-DB]

IN ECIL VS KARUNAKAR [1994 ILLJ 162] THE SUPREME COURT HAD ORDERED THAT A COPY OF THE ENQUIRY REPORT SHOULD BE FURNISHED AND THE REPRESENTATION TO IT BE CONSIDERED BEFORE ANY PUNISHMENT ORDERS IS ISSUED AGAINST A DELINQUENT. WOULD FAILURE TO SUPPLY THE SAME MAKE THE ACTION FATAL?

MANY COURTS HAD HELD THAT IT WOULD BE FATAL AND ORDERED REVERSAL OF THE DISCIPLINARY PUNISHMENT. IN THIS LATEST JUDGEMENT THE SUPREME COURT HAS MODIFIED THE POSITION. THE PRESENT POSITION IS THAT EVEN IF THE REPORT IS NOT FURNISHED IT WOULD NOT BE FATAL. COURTS SHOULD CALL UPON THE EMPLOYEE TO SHOW WHAT PREJUDICE. HE HAS SUFFERED BEFORE PASSING AN ORDER OF REJECTING OR UPHOLDING THE DISCIPLINARY ACTION.

STATE BANK OF PATIAVSSK SHARMA [1997 LLR 268 SC-DB]

IN AN ENQUIRY THE MANAGEMENT HAD REFUSED TO GIVE THE PRELIMINARY REPORT OR PRE-RECORDED STATE-MENT OF SOME WITNESSES DEMANDED BY THE DELINQUENT WOULD THIS VITIATE THE DISCIPLINARY ACTION.

AS THESE WITNESSES WERE EXAMINED AT THE ENQUIRY AND OPPORTUNITY WAS GIVEN FOR THEIR CROSS EXAMINATION, NO PREJUDICE HAS BEEN CAUSED, HELD NOT VITIATED.

VIJAYA KUMAR NIGAMVSSTATE OF MP [1997 (77) FLR 8 SC-DB]

CAN THE STATEMENT OF A CO-ACCUSED BE TAKEN INTO ACCOUNT IN ADJUDGING THE GUILT OF ANOTHER ACCUSED.

THIS IS NOT EVIDENCE IN THE STRICT SENSE UNDER THE EVIDENCE ACT.  BUT THE EVIDENCE ACT IS NOT APPLICABLE TO DOMESTIC ENQUIRIES AND HENCE THIS KIND OF EVIDENCE CAN BE RELIED UPON IN DOMESTIC ENQUIRY.

INDIAN OIL CORPORATIONVSASHOK KUMAR ARORA [1997 (75) FLR 949 SC-DB]

WHAT IS THE EXTENT AND SCOPE OF THE POWERS OF HIGH COURTS TO INTERFERE IN DISCIPLINARY PUNISHMENTS UNDER ARTICLE 226

WHILE THE SUPREME COURT HAS WIDE POWERS TO HEAR A CASE AS AN APPEAL AND GO INTO ALL ASPECTS OF DISPUTE UNDER ARTICLE 136,THE POWERS OF THE HIGH COURTS TO INTERFERE UNDER ARTICLE 226 IN DISCIPLINARY MATTERS IS RESTRICTED AND LIMITED. HIGH COURTS CAN INTERFERE ONLY IF THE FOLLOWING IS MADE OUT:

1)       WHEN ENQUIRY IS VITIATED DUE TO NON-OBSERVANCE OF THE PRINCIPLES OF NATURAL JUSTICE 

2)       FOR DENIAL OF A REASONABLE

OPPORTUNITY FOR PUTTING UP A DEFENCE.

3)   OR WHEN FINDING IS BASED ON NO EVIDENCE4)       THE PUNISHMENT IS

DISPROPORTIONATE TO THE OFFENCE PROVED.

STEEL AUTHORITY OF INDIAVSDR RK DIWAKAR [1998 ILLJ-344-SC-DB]

MUST A CHARGE SHEET BE ISSUED BY THE DISCI-PLINARY AUTHORITY.  CAN AUTHORITY BELOW THE RANK OF THE APPOINTING AUTHORITY WILL ISSUE IT. A CHARGE MEMO ISSUED BY A LOWER AUTHORITY BE INVALID?

. WHILE A PUNISHMENT ORDER MUST BE ISSUED ONLY BY THE DULY NOTIFIED DISCIPLINARY AUTHORITY A CHARGE SHEET COULD BE ISSUED BY ANY LOWER AUTHORITY ESPECIALLY WHEN THERE IS A PROPER DELEGATION OF POWER TO SUCH LOWER AUTHORITY

B BALAKRISHNAN REDDYVSELECTRICITY BOARD (APSEB) [WRIT PETITION NO.16852/1991 DELIVERED IN JANUARY 1998]

CAN THE DISCIPLINARY AUTHORITY ORDER A FRESH ENQUIRY AFTER THE ENQUIRY OFFICER HAS SUBMITTED THE REPORT HOLDING THE EMPLOYEE NOT GUILTY

THE DISCIPLINARY AUTHORITY CANNOT ORDER A FRESH ENQUIRY - THIS WOULD AMOUNT TO HARASSMENT.

 THE DISCIPLINARY AUTHORITY COULD HOWEVER WRITE A DIFFERENT FINDING BASED ON THE RECORDS OF THE FIRST ENQUIRY AND COURTS WOULD UPHOLD A DIFFERENT FINDING IF IT IS A SPEAKING ORDER.

A Brief Note On Labour Legislation In India

Created: 2007-09-27

By Babu Mathew

Legislative history

The history of labour legislation in India is naturally interwoven with the history of British

colonialism. Considerations of British political economy were naturally paramount in

shaping some of these early laws. In the beginning it was difficult to get enough regular

Indian workers to run British establishments and hence laws for indenturing workers

became necessary. This was obviously labour legislation in order to protect the interests

of British employers.

Then came the Factories Act. It is well known that Indian textile goods offered stiff

competition to British textiles in the export market and hence in order to make India

labour costlier the Factories Act was first introduced in 1883 because of the pressure

brought on the British parliament by the textile magnates of Manchester and

Lancashire. Thus we received the first stipulation of eight hours of work, the abolition of

child labour, and the restriction of women in night employment, and the introduction of

overtime wages for work beyond eight hours. While the impact of this measure was

clearly welfarist the real motivation was undoubtedly protectionist!

To date, India has ratified 39 International Labour Organisation (ILO) conventions of

which 37 are in force. Of the ILO’s eight fundamental conventions, India has ratified four

- Forced Labour 1930, Abolition of Forced Labour 1957, Equal Remuneration 1951, and

Discrimination (employment and occupation) 1958.

The organised and the unorganised

An important distinction that is popularly made nowadays in all discussions relating to

labour legislation is between workers in the organised/formal sector and those in the

informal/informal sector. Many who make this distinction do so with ulterior motives, yet

we must reckon with it - especially because out of the total workforce in the country, 92

percent work in the informal sector while only eight percent work in the formal sector.

At the outset it must therefore be remembered that those who were unorganised

yesterday are organised today and those who are unorganised today aspire to become

the organised tomorrow. Moreover, many rights, benefits, and practices, which are

popularly recognised today as legitimate rights of the workers, are those that have

accrued as a result of the struggles carried out by the earlier generation of workers. The

attempt, prevalent in some circles to pit one section of workers against the others, must

therefore be carefully understood and deserves to be rejected outright.

Trade unionism and the Trade Union Act 1926

There are almost ten major central union organisations of workers based on different

political ideologies. Almost every union is affiliated to one of these. These central

organisations have state branches, committees, and councils from where its

organisation works down to the local level.

The first central trade union organisation in India was the All India Trade Union

Congress (AITUC) in 1920 - almost three decades before India won independence. At

about the same time workers at the Buckingham and Carnatic Mills, Madras went on

strike led by B P Wadia. The management brought a civil suit against the workers in the

Madras High Court and not only obtained an injunction order against the strike but also

succeeded in obtaining damages against the leader for ‘inducing a breach of contract’.

This was followed by widespread protests that finally yielded in the Trade Union Act

1926 giving immunity to the trade unions against certain forms of civil and criminal

action. Apart from this aspect the Trade Union Act also facilitated registration, internal

democracy, a role for outsiders and permission for raising a political fund subject to

separate accounting requirements.

The Trade Union Act facilitates unionisation both in the organised and the unorganised

sectors. It is through this law that the freedom of association that is a fundamental right

under the Constitution of India is realised.

The right to register a trade union however does not mean that the employer must

recognise the union – there is in fact no law which provides for recognition of trade

unions and consequently no legal compulsion for employers, even in the organised

sector, to enter into collective bargaining.

Yet in reality because of the strength of particular trade unions there is fairly widespread

collective bargaining, especially in the organised sector.

Wage determination in the unorganised sector

Wage determination in India has been achieved by various instruments. For the

unorganised sector the most useful instrument is the Minimum Wages Act 1948. This

law governs the methods to fix minimum wages in scheduled industries (which may vary

from state to state) by using either a committee method or a notification method. A

tripartite Advisory Committee with an independent Chairman advises the Government

on the minimum wage. In practice unfortunately, the minimum wage is so low that in

many industries there is erosion of real wage despite revision of the minimum wage

occasionally. A feeble indexation system has now been introduced in a few states only.

Collective bargaining in the organised sector

An important factor that is not much recognised, but which still prevails in many

organised sector units is fixing and revising wages through collective bargaining. The

course of collective bargaining was influenced in 1948 by the recommendations of the

Fair Wage Committee that reported that three levels of wages exist - minimum, fair, and

living.

These three wage levels were defined and it was pointed out that all industries must pay

the minimum wage and that the capacity to pay would apply only to the fair wage, which

could be linked to productivity. In addition to this the fifteenth Indian Labour Conference,

a tripartite body, met in 1954 and defined precisely what the needs-based minimum

wage was and how it could be quantified using a balanced diet chart.

This gave a great boost to collective bargaining; many organised sector trade unions

were able to achieve reasonably satisfactory indexation and a system of paying an

annual bonus. It is now the law, that a thirteenth month of wage must be paid as a

deferred wage to all those covered by the Payment of Bonus Act. The minimum bonus

payable is 8.33 percent and the maximum is 20 percent of the annual wage.

Strikes and lockouts

Workers have the right to strike, even without notice unless it involves a public utility

service; employers have the right to lockout, subject to the same conditions as a strike.

The parties may sort out their differences either bilaterally, or through a conciliation

officer who can facilitate but not compel a settlement which is legally binding on the

parties, even when a strike or a lockout is in progress. But if these methods do not

resolve a dispute, the government may refer the dispute to compulsory adjudication and

ban the strike or lockout.

Conciliation, arbitration, and adjudication

When parties engaging in collective bargaining are unable to arrive at a settlement,

either party or the government may commence conciliation proceedings before a

government appointed conciliation officer whose intervention may produce a settlement,

which is then registered in the labour department and becomes binding on all parties. If

conciliation fails it is open to the parties to invoke arbitration or for the appropriate

government to refer the dispute to adjudication before a labour court or a tribunal whose

decision may then be notified as an award of a binding nature on the parties. Disputes

may be settled by collective bargaining, conciliation, or compulsory adjudication.

Colonial dispute settlement machinery

The Industrial Disputes Act 1947 (IDA) provides for the settlement machinery above.

The framework of this legislation, which is the principle legislation dealing with core

labour issues, is of colonial origin. This law originated firstly in the Trade Disputes Act

1929, introduced by the British, when there was a spate of strikes and huge loss of

person days and secondly through Rule 81A of the Defence of India Rules 1942, when

the British joined the war efforts and wanted to maintain wartime supplies to the allied

forces. Interestingly the interim government on the eve of formal independence retained

this framework by enacting the IDA, which still remains on the statute book.

Developments after independence

Even though the IDA was primarily meant for industry in the organised sector, its

present application has now extended well into the unorganised sector, through judge-

made law. Its pro-worker protection clauses and safeguards against arbitrary job losses

have evolved over a period of time both through the process of sustained legislative

amendments and through the process of judicial activism spread over more than five

decades. 

The original colonial legislation underwent substantial modification in the post-colonial

era because independent India called for a clear partnership between labour and

capital. The content of this partnership was unanimously approved in a tripartite

conference in December 1947 in which it was agreed that labour would be given a fair

wage and fair working conditions and in return capital would receive the fullest co-

operation of labour for uninterrupted production and higher productivity as part of the

strategy for national economic development and that all concerned would observe a

truce period of three years free from strikes and lockouts.

Regulation of job losses

Space does not allow a detailed discussion of this transformation in labour policy and

consequent amendments to labour law, but provisions that deal with job losses must be

noted. Under the present law any industrial establishment employing more than 100

workers must make an application to the Government seeking permission before

resorting to lay-off, retrenchment, or closure; employers resorting to any of the said

forms of creating job losses, is acting illegally and workers are entitled to receive wages

for the period of illegality. The Reserve Bank of India commissioned a study into the

causes of sickness in Indian industry and they reported cryptically, ‘Sickness in India is

a profitable business’. This chapter in the IDA, which has been identified as offering

high rigidity in the area of labour redundancy, has been targeted for change under

globalisation and liberalisation.

Protection of service conditions

A feature of the IDA is the stipulation that existing service conditions cannot be

unilaterally altered without giving a notice of 21 days to the workers and the union.

Similarly if an industrial dispute is pending before an authority under the IDA, then the

previous service conditions in respect of that dispute cannot be altered to the

disadvantage of the workers without prior permission of the authority concerned. This

has been identified as a form of rigidity that hampers competition in the era of the World

Trade Organisation.

Removal from service

A permanent worker can be removed from service only for proven misconduct or for

habitual absence - due to ill health, alcoholism and the like, or on attaining retirement

age. In other words the doctrine of ‘hire and fire’ is not approved within the existing legal

framework. In cases of misconduct the worker is entitled to the protection of Standing

Orders to be framed by a certifying officer of the labour department after hearing

management and labour, through the trade union. Employers must follow principles of

‘natural justice’, which again is an area that is governed by judge-made law. An order of

dismissal can be challenged in the labour court and if it is found to be flawed, the court

has the power to order reinstatement with continuity of service, back wages, and

consequential benefits. This again is identified as an area where greater flexibility is

considered desirable for being competitive.

Return to colonial days!

Almost all pro-worker developments that accrued since independence are now identified

as areas of rigidity and in the name of flexibility there is pressure on the government of

India to repeal or amend all such laws. Interestingly, if such a proposal is fully

implemented, labour law, especially for the organised sector, will go back to the colonial

framework where state intervention was meant primarily to discipline labour, not to give

it protection.

Globalisation

The most distinctly visible change from globalisation is the increased tendency for

offloading or subcontracting. Generally this is done through the use of cheaper forms of

contract labour, where there is no unionisation, no welfare benefits, and quite often not

even statutorily fixed minimum wages. Occasionally the tendency to bring contract

labour to the mother plant itself is seen. This is very often preceded by downsizing, and

since there is statutory regulation of job losses, the system of voluntary retirement with

the ‘golden handshake’ is widely prevalent, both in public and private sectors.

Regulation of contract labour

The Contract Labour (Prohibition and Regulation) Act 1970 provides a mechanism for

registration of contractors (if more than twenty workers are engaged) and for the

appointment of a Tripartite Advisory Board that investigates particular forms of contract

labour, which if found to be engaged in areas requiring perennial work connected with

the production process, then the Board could recommend its abolition. A tricky legal

question has arisen as to whether the contract workers should be automatically

absorbed or not after the contract labour system is abolished. Recently a Constitutional

Bench of the Supreme Court held that there need not be such automatic absorption - in

effect this ‘abolishes’ the contract labourer and has given rise to a serious anomaly.

Phase between organised and unorganised

We are already witnessing a reduction in the organised labour force and an increase in

the ranks of the unorganised. The above law is a kind of inter-phase in the process of

regulating the transition from regular employment to irregular employment. If contract

labour is seen as introducing a form of flexibility, a strict enforcement of this Act could

have had a salutary effect on the transition process. Instead the enforceability of the Act

is now diluted and consequently even the minimum protection envisaged under this law

to contract labourers is in jeopardy. Dominant thinking in relation to globalisation is

having its effect on the judicial process also, ignoring Directive Principles of State Policy

contained in the Constitution of India.

Employment injury, health, and maternity benefit

The Workman’s Compensation Act 1923 is one of the earliest pieces of labour

legislation. It covers all cases of ‘accident arising out of and in the course of

employment’ and the rate of compensation to be paid in a lump sum, is determined by a

schedule proportionate to the extent of injury and the loss of earning capacity. The

younger the worker and the higher the wage, the greater is the compensation subject to

a limit. The injured person, or in case of death the dependent, can claim the

compensation. This law applies to the unorganised sectors and to those in the

organised sectors who are not covered by the Employees State Insurance Scheme,

which is conceptually considered to be superior to the Workman’s Compensation Act.

The Employees State Insurance Act provides a scheme under which the employer and

the employee must contribute a certain percentage of the monthly wage to the

Insurance Corporation that runs dispensaries and hospitals in working class localities. It

facilitates both outpatient and in-patient care and freely dispenses medicines and

covers hospitalisation needs and costs. Leave certificates for health reasons are

forwarded to the employer who is obliged to honour them. Employment injury, including

occupational disease is compensated according to a schedule of rates proportionate to

the extent of injury and loss of earning capacity. Payment, unlike in the Workmen’s

Compensation Act, is monthly. Despite the existence of tripartite bodies to supervise the

running of the scheme, the entire project has fallen into disrepute due to corruption and

inefficiency. Workers in need of genuine medical attention rarely approach this facility

though they use it quite liberally to obtain medical leave. There are interesting cases

where workers have gone to court seeking exemption from the scheme in order to avail

of better facilities available through collective bargaining.

The Maternity Benefit Act is applicable to notified establishments. Its coverage can

therefore extend to the unorganised sector also, though in practice it is rare. A woman

employee is entitled to 90 days of paid leave on delivery or on miscarriage. Similar

benefits, including hospitalisation facilities are available under the law described in the

paragraph above.

Retirement benefit

There are two types of retirement benefit generally available to workers. One is under

the Payment of Gratuity Act and the other is under the Provident Fund Act. In the first

case a worker who has put in not less than five years of work is entitled to a lump sum

payment equal to 15 days’ wages for every completed year of service. Every month the

employer is expected to contribute the required money into a separate fund to enable

this payment on retirement or termination of employment. In the latter scheme both the

employee and the employer make an equal contribution into a national fund. The

current rate of contribution is 12 percent of the wage including a small percentage

towards family pension. This contribution also attracts an interest, currently 9.5 percent

per annum, and the accumulated amount is paid on retirement to the employee along

with the interest that has accrued. Unfortunately the employee is allowed to draw many

types of loan from the fund such as for house construction, marriage of children, and

education etc. As a result very little is available at the time of retirement. This is also a

benefit, which is steadily being extended to sections of the unorganised sector,

especially where the employer is clearly identifiable.

Women labour and the law

Women constitute a significant part of the workforce in India but they lag behind men in

terms of work participation and quality of employment. According to Government

sources, out of 407 million total workforce, 90 million are women workers, largely

employed (about 87 percent) in the agricultural sector as labourers and cultivators. In

urban areas, the employment of women in the organised sector in March 2000

constituted 17.6 percent of the total organised sector.

Apart from the Maternity Benefit Act, almost all the major central labour laws are

applicable to women workers. The Equal Remuneration Act was passed in 1976,

providing for the payment of equal remuneration to men and women workers for same

or similar nature of work. Under this law, no discrimination is permissible in recruitment

and service conditions except where employment of women is prohibited or restricted

by the law. The situation regarding enforcement of the provisions of this law is regularly

monitored by the Central Ministry of Labour and the Central Advisory Committee. In

respect of an occupational hazard concerning the safety of women at workplaces, in

1997 the Supreme Court of India announced that sexual harassment of working women

amounts to violation of rights of gender equality. As a logical consequence it also

amounts to violation of the right to practice any profession, occupation, and trade. The

judgment also laid down the definition of sexual harassment, the preventive steps, the

complaint mechanism, and the need for creating awareness of the rights of women

workers. Implementation of these guidelines has already begun by employers by

amending the rules under the Industrial Employment Standing Orders Act 1946.

Implementation of labour laws

The Ministry of Labour has the responsibility to protect and safeguard the interests of

workers in general and those constituting the deprived and the marginal classes of

society in particular with regard to the creation of a healthy work environment for higher

production and productivity. The Ministry seeks to achieve this objective through

enacting and implementing labour laws regulating the terms and conditions of service

and employment of workers. In 1966, the Ministry appointed the First National Labour

Commission (NLC) to review the changes in the conditions of labour since

independence and also to review and assess the working of the existing legal

provisions. The NLC submitted its report in 1969. The important recommendations of

NLC have been implemented through amendments of various labour laws. In the areas

of wage policy, minimum wages, employment service, vocational training, and worker’s

education, the recommendations made by the NLC have been largely taken into

account in modifying policies, processes, and programmes of the government. In order

to ensure consistency between labour laws and changes in economic policy, and to

provide greater welfare for the working class, the Second NLC was constituted in 1999.

All labour laws provide for an inspectorate to supervise implementation and also have

penalties ranging from imprisonment to fines. Cases of non-implementation need to be

specifically identified and complaints filed before magistrates after obtaining permission

to file the complaint from one authority or the other. Very few cases are filed, very rarely

is any violator found guilty, and almost never will an employer be sent to prison.

Consequently these powers are used by corrupt officials only for collecting money from

employers.

This does not however mean that no labour laws are implemented. On the contrary

experience has proved that the implementation of such laws is directly proportional to

the extent of unionisation. This generalisation is particularly true of the informal sector.

The unorganised sector

Many of the laws mentioned above apply to the unorganised sector also. In some cases

a separate notification may be necessary to extend the application of a particular law to

a new sector. It is useful to notice that some pieces of legislation are more general in

character and apply across the board to all sectors. The Trade Union Act 1926, The

Minimum Wages Act 1948, The Contract Labour (Regulation and Abolition) Act 1970,

The Workman’s Compensation Act 1923, and The Payment of Wages Act 1936 are

examples of this type. In certain cases, even the IDA 1947 would be included.

In addition to the above there are special sectoral laws applicable to particular sectors

of the unorganised. Under this category are laws like the Building and Construction

Workers Act 1996, the Bonded Labour System (Abolition) Act 1976, The Interstate

Migrant Workers Act 1979, The Dock Workers Act 1986, The Plantation Labour Act

1951, The Transport Workers Act, The Beedi and Cigar Workers Act 1966, The Child

Labour (Prohibition and Regulation) Act 1986, and The Mine Act 1952.

Broadly speaking these sectoral laws either abolish or prohibit an abominable practice

like bonded labour or they seek to regulate exploitative conditions by regulating working

hours and conditions of service.

A recent trend has been to seek the creation of a welfare fund through the collection of

a levy from which medical benefits or pension provisions are made. Workers and

management may contribute and attempt to set up tripartite boards for implementation

of welfare benefits. In some states like Kerala a large number of such boards have

already been set up to take care of welfare in different sectors of employment.

Another contemporary effort is to provide an umbrella statute to take care of

employment conditions and social welfare benefits for all unorganised sections.

Common central legislation for all agricultural workers is also on the anvil. Many powers

are vested in quasi-judicial authorities, labour courts, and magistrates’ courts. The

power of review is in the High Courts and finally in the Supreme Court.

The general experience, with the occasional exception, is unbearable delay. Even

where statutes prescribe reasonable time limits, they are not adhered to. Frustration

with labour-related justice is heightened by these unlimited delays. A case of dismissal

takes almost ten years for the labour court to decide and if the parties decide to seek

judicial review in the higher courts there can be unlimited delay.

For the unorganised sector a renewed attempt to focus on the core labour standard

identified by the ILO in its Declaration on Fundamental Rights at Work would still be

worthwhile, especially if we take steps to ensure the implementation of the first of those

core labour standards namely the freedom of association and the right to collective

bargaining. It is only through the organisation of potential beneficiaries that we can hope

for some benefits at least to percolate down into the hands of the needy.