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EVOLUTION
AND DEVELOPMENT OF INDUSTRIAL JURISPRUDENCE IN INDIA
Dr.
Harishchandra Ram,
Assistant Professor of Law,
University of Lucknow, Lucknow U. P.
Abstract
Industrial jurisprudence is an ideology to study the
perspective and perception of those legislators who give the shape to be a
labour legislation for governing the relation of workmen and employers. It is
correctly said by Mahatma Ganghi that industry is the joint venture of workmen
and employers. In the Hospital Mazdoor
Sabha[1] case the
triple test theory introduced and it was reiterated and set up in the case of Banglore Water Supply[2]. In both
cases the cooperation of workmen is made essential part to be any
industry. The industrial jurisprudence
provides the thinking to make the labour laws accordingly. When the laissez
faire theory wiped out and placed the welfare state, workers has become the
integral part of any industry. With this view the state made the labour
legislation for governing the relation of workmen and employers. It has been
felt by most of the country of world that there must be apply tripartism; it
means state will interfere with the labour regulations to settle the both
relations. For this purpose state made the various laws, which are existed. In
June 1998the International Conference proposed the fundamental labour policy
for the World. Certain points of hose policy are existed in Indian labour
jurisprudence. First, freedom of association, second, right to collective
bargaining, third, elimination of all forms of forced or compulsory labour,
fourth abolition of child labour and fifth, elimination of discrimination in
respect of employment and occupation. Industrial jurisprudence is more dynamic
for industrial governance. With this ideology, the State utilizes the modus operandi accordance with the need of regulation for harmonious
relation between employers and employees. When the Constitution of India
commenced the concept of social justice gave the pace to the welfare labour
legislation. The outcome of concept, the social assurance and social assistance
are also prevalent with the ideology of social justice. It is the spirit of the
Constitution. Now, it is being expected that there will be dynamic change in
industrial jurisprudence by introducing the new economic policy for the
upliftment of industry as well as labours. It not need to be panic the new exit
policy will destroy the fundamental rights of the workers.
Key
Word: Joint
venture, Tipple test, Social justice, Legal philosophy, Compensation, Social
transformation and good governance, Democracy, International Convention etc.
Introductory:
The evolution of the industrial jurisprudence
in India after long time it’s developed in the Europe and Britain. During the
British administration, British administrator exploited by chained to the class
of Indian labours. In the first stage of the 20th century developed
the Trade Unionism, evolution of International Labour Organization, developed
the class awareness during the freedom
fighting and with the development of social structure the British Government had
passed the labour legislations and enforced it for the protection of labour
interest. The concept of industrial jurisprudence in our country developed only
after independence. Until independence the change in the attitude of the
government and the benevolent labour legislation only aimed at amelioration of
the conditions of labour and it could hardly be said to be a deal in social
justice to the working class[3]. The
provisions of the Constitution of India which oriented to welfare state have
given the new birth of industrial jurisprudence and it clear the industrial
relations philosophy of republic of India. ‘This philosophy has afforded the
broad and clear guidelines for the development of our industrial jurisprudence
and has thus taken India one step forward in her quest for industrial harmony’.[4]
Evolution
and Development of Industrial Jurisprudence:
Industrial jurisprudence is of great
importance to all develop or developing countries of the world because it is
concerned with the study of problems relating to human relations arising out of
a large scale development of a factory system which has emerged in consequence
of industrial revolution. Proper regulation of employer-employee relationship
is a condition precedent for planned, progressive and purposeful development of
any society. In spite its widening scope which cannot be forgotten that its
application is limited in certain respect. For example, there are still a vast
majority of the people who in their relationship are still governed by the
ordinary law of contract based on laissez faire doctrine. Industrial
jurisprudence is a developing concept. It derived its main strength from social
justice which is dynamic and changing. The concept of social justice itself
changes with the social, economic and political changing in society. Therefore,
it has yet to take its final shape. Industrial jurisprudence cannot, with all
its high ideals, displace general jurisprudence just as no amount of social
justice can abrogate altogether the concept of legal justice. Even while
dispensing social justice the courts, tribunals and arbitrators, whoever it may
be, cannot ignore the law.[5]
The
industrial society all over the world has been moving during the present
century from contract to status and this status is a politico-socio-economic
juristic status[6]. As an
instrument of social policy in the present day bi-politic the role of
industrial jurisprudence has still gained importance. Industrial jurisprudence
is the corner stone of the fabric of the entire human race[7].
Industrial jurisprudence in relation to industrial society stands in the same
way just as general jurisprudence in relation to the general society[8].
The
immediate source of industrial jurisprudence can traced to the enactment of a
plethora of a labour laws aimed at ensuring the health, welfare and safety of
the working class, protection against exploitation and unfair dismissals, and
recognising the rights of workmen to organise and bargain collectively. For
centuries the rights conferred on slaves under the Roman law were no different
from those of domestic animal. Slave labour system was progressively replaced
by serfdom in England during the seventeenth century. Serfs were placed on a
somewhat better footing than slaves in terms of contracting a few rights. Not
available to the latter, even thought the system by and large remained the
same. Exploitation of the labour by the master was a normal phenomenon. He had
no option but to serve the will of master. The spillover of this attitude
towards labour could be seen even in the early stages of capitalism
characterised by a mechanistic approach with no recognition of human labour
except as a means and a factor of production. Factory workers got nothing more
than starvation wages.[9] Only
towards the middle of nineteenth century did contractual relationship replace
the traditional master-servant relationship. The compulsion of the factory
system introduced fundamental changes in employer-employee relations, while
state regulation added a new dimension to it. The pattern and pace of change in
employment relationship were by no means identical in all the societies. The
range and variety of the rights created under the labour laws were so complex
that they called for a new set of remedies reliefs thus for unknown to civil
law or civil jurisprudence. Industrial jurisprudence, which the offspring of
civil and service jurisprudence, began acquiring a unique independent
personality of its own during the second quarter of twentieth century[10].
Several factors contributed to this phenomenon: the evolution of democratic
institutions, the imperatives of economic development and the birth of ILO. The
minimum labour standard evolved by the ILO furnished the basis for member
Nations to enact labour laws geared to safeguard the interest of the working class.
By 1930s, an altogether new branch of law, which created a new set of rights
and remedies for the exclusive benefit of industrial employees outside
framework of civil law taking shape in almost all the centuries. The industrial
law and industrial jurisprudence eventually branched out of civil and service
jurisprudence, while retaining some of the core features of both. The growth of
the industrial jurisprudence in India subsequent to 1950 bears close
resemblance to the growth of constitutional law in relation to the Fundamental
Rights guaranteed to the citizens...industrial jurisprudence...seeks to evolves
a rational synthesis between conflicting claims of the employers and the
employees... industrial jurisprudence does and should always and should try to
examine the merits of the rival contention and seek to resolve the conflict by
evolving solution which do not injustice to the employers and fully meet the
employees’ legitimate claims...The interests of the employees which have
received constitutional guarantees under the Directive Principles, the interest
of employers which have received a guaranteed under Article19 and other
Articles of Part III and the interests of the community at large which are so
important in a welfare state. It is on these lines that industrial
jurisprudence has developed during the last three decades in India[11].
The
observation of Ludwig Teller, ‘industrial arbitration may involve the extension
of an existing agreement, or the making of a new one, or in the general
creation of new obligations or modification of old one, while commercial
arbitration generally concerns itself with interpretation of existing
obligations and disputes. Relating to existing agreements’, which was cited
with approval by the Supreme Court, constitute the foundation on which the
super structure of industrial jurisprudence has been built’[12]. The
Supreme Court and High Court are contributed to develop the industrial laws
where the legislation missed the in shaping the exact laws, for carry on the
peace and harmony between the employers and employees, both Courts kept in
their mind the industrial legal philosophy. This jurisprudence provides the
vision to establish the instrument to resolving the tussles; at many places
such Courts well played their part. The Parliament and the Supreme Court have
helped in shaping industrial jurisprudence, the former through legislation and
the latter as interpreter of the labour laws. Workman is a mankind and has the
rights which are provided by Part III of the Constitution of India. India is an
assignee country of the International Labour Organization. So, the declarations
which have been made in June, 1998 in International Labour Conference, the
fundamental principles have been adopted in Indian labour policy which are:
(i)
Freedom to form association and the effective
recognition of the rights to collective bargaining.
(ii)
The elimination of all forms of forced or
compulsory labour.
(iii)
The effective abolition of child labour.
(iv)
The elimination of discrimination in respect
of employment and occupation.
Those
declaratory principles have needed to give pace in our industrial jurisprudence
and it must have formed the actual enactment and amendment in labour laws.
Now a day all these have become necessary
with the opening up of our economy, a step from which there is no going back.
We are now facing competition from unexpected quarters; a country like China
has slowly but surely taken over the mantle of the Asian tiger. We are also
facing stiff competition in area that have traditionally been our strength,
such as textiles, tea steel etc. It is for this reason that our business class
has diversified into other sectors such as information technology but it is
doubtful how long the service industry can sustain our economic growth. It is
estimated that our country can absorb almost three times the existed labour of
Foreign Direct Investment, but we would still need to improve our industrial
base for the benefit our teeming millions and increase our capacity for
manufacturing capitals of goods of good quality and at a cheap price[13].
Wherever,
the labour jurisprudence is accepted as synonyms of industrial jurisprudence.
The scope of labour jurisprudence or its range is wider. It includes all types
of working labours of the organized, unorganized sectors. Whereat, the labours
working in self employed schemes can be the subject of labour jurisprudence.
While, under the industrial jurisprudence the problems of employees of organise
sector of industry is being studied. But in general phenomenon the words labour
jurisprudence and industrial jurisprudence are used in the form of synonyms.
In
the era of Industrial Revolution in the western countries and evolution of
capital system the labour was considered as commodity accordance with the
theory of supply and demand. A labour sells his labour only, not himself as a
person. Actually, he invests human capital in the way of his skill and physical
power. Labour is an article for the purposes of commerce it is completely
unrealistic. The contemporary economists called the labour as a ‘form of
commodity’. But the International Labour Organization passed and emphasis in
Philadelphia Declaration that labour is not any commodity. So that, it cannot
be treated as the commodity for hire and fire accordance with the theory of
‘demand and supply’.[14]
Professor Amartya Sen., a Nobel laureate in Economics, has propounded the
theory of technology of production which states that ‘the countries abundance
in labour force must adopt labour intensive technologies of production. This
would ensure maximum possible employment to the labour force on the one hand
and result in lesser use of precious capital in such countries, on the other.’
According to the Economist Thomas Robert Malthus, “every work whether manual or
mental which is undertaken for monetary consideration is called labour. But
hereby labour we mean workers in industries, factories and in other
establishments which fall within the definition of workmen or employees
according to different Acts and not as defined in economics as a factor of
production.”[15]
While some economist thinks that labour is commodity, they also keep in
mind towards the labour does not possess the labour as material goods and has
personality, emotions, beliefs, social responsibilities, moral obligations and
ethical notions. He is a living as well as social person and cannot be
separated labour from his personality. The State has intervened through the
labour legal instrument thoroughly established that is not a commodity, but
now, they are the part of the industry. In real, the labour is not subject of
commerce. It is made mandatory for employer to pay the compensation to the
employee in the case of any injury or death arising out of and in the course of
employment.[16]
But in unorganized sector the labour till now treated as a subject of commerce,
there workers works on hire or on any remuneration on an agreement made by the
employer in way of bargaining for short period. The Labour Legislation failed
to prevent to this prevalent anarchy. Indeed, it is a social menace.
One side the provisions for made for retrenched workers who can claim to
get retrenchment compensation.[17]
Other side the workers employed on the basis of hire or on daily wages cannot
claim retrenchment compensation as well as lay-off compensations. Because, the
daily wage earners cannot fulfill the conditions of continuous service.[18]
The one organ of formula of tripartism State has made the instrument on the
application of all industrial establishments which are fit in the framework of
same instrument. The Industrial Dispute Act, 1947 actually, works as a
substantive laws and provides the measures to be a workmen through the
definition in Section 2(s) as well as industry in Section 2(j). Mahatma Gandhi
says, “Industry is a joint venture of workman and employer.” Definitely the
labour is an essential and integral part of industry. Now a day, the robot is
being the part of industry and replacing the workers but these devices are not
more success as to take thorough place of living workers.
Basic Principles of labour Legislation
Labour legislation is
purporting to concerning to labour as well as industry. Labour legislation is the
outcome of the labour jurisprudence or industrial jurisprudence. Social
security, social equality and social justice are the fundamental principles of
labour legislation probably of any country. The economy of country and
international conventions of international organizations give the shape to be
such type of legislations. Such components are integral part of the industrial
jurisprudence from which the law derives. It is correctly opined that
“jurisprudence is the eye of law”[19].
(i)
Social
security: Social security to the
workers would involve to providing or framing such schemes or services or
facilities and amenities which can enable to the workers to lead a decent
minimum standard of life and having financial/economic security to fall back
upon in the event of loosing job for whatsoever may be the reason in the
circumstances beyond their control. The workers must given the wages and other
services which will enable them and member of their family to lead a decent
life. The social security is an instrument for social transformation and good
governance. Preserving the welfare of labour must be main motive of labour
legislation.
(ii)
Social
Justice: Social justice is different
from legal justice. The difference is not of objective but aim at dispensing
justice. The difference is due to two reasons: (i) the aim social justice doing
justice between classes of society, and not between individual, (ii) the
methods which adopts is orthodox compared to the methods of municipal law.
Justices dispensing according to the law of master and servant, based upon the
principle of absolute freedom contract and the doctrine of laissez-faire,
is legal justice. Social justice is something more than mere justice; it is a
philosophy upper-imposed upon the legal systems.[20]
“Social justice is a dynamic device to mitigate the suffering of the poor,
weal, dalit, tribals and deprived section of society and to elevate them to the
level of equality to live a life with dignity of person. Social justice is not
a simple or single idea of a society but is an essential part of complex social
change to relieve the poor from handicaps, penury to ward of distress and to
make their life livable, for greater good of the society at large. In other
words, the aim of social justice is to attain substantial degree of social,
economic and political quality, which the legitimate expectation and
constitutional goal. Social security, just and human conditions of work and
leisure to workman are part of his meaningful right to life and to achieve self-expression
of his personality and to enjoy the life with dignity.”[21]
“Indeed the concept of
social justice has now become such integral part of Industrial law that it
would be idle for any party to suggest that industrial adjudication can or
should ignore the claims of social justice in dealing with industrial dispute.”[22]
In the favor of social
justice the remedial compensation regarding laid-off and retrenched workers
must be offered in any form like financial help or any kind. If the service of
workers discarded due to the closure of industry the Appropriate Government
should to make any intervention to secure the life those workers. Legislation
must be made to extend the monetary assistance to workers so that they can get
rid of non-employment.
(iii)
Social
Equity: any legislation which is
based on social justice prescribes the definite standard for adoption in the
future. Such standard is fixed after taking into account the past and present
circumstances. Once a standard is so fixed by legislation it remains in force
until it is changed or modified by another legislation passed in conformity
with legislative procedure. No discretion is given to change such law to the
authority administering such law. However where it is felt that the law should
be flexible the government to make such changes. This is generally done by
giving the Government rule making power under the provisions under the Act.
When power under the Act is given to the Government the rules may be modified
to suit the changed conditions. Such legislation is said to be based on social
equity.
(iv)
Social
Insurance: in this scheme a common
fund must be generated with periodical contribution from the workers like the
contributed generated under the Section 15 of the Trade Union Act, 1926. Such
benefit must be given to the laid-off, retrenched workers and the workers who
are out of service due to closure. The contribution from workers must taken
accordance with their paying capacity. The contribution of employees must be
made mandatory in appropriate ratio.
(v)
Social
Assistance: The workers who
terminated from service from the consequences of retrenchment, continuous of
lay-off and closure, the Appropriate Government must offer for contribution
from common people who able to do contribution in the welfare of such workers.
Social organizations put one step ahead regarding welfare of such workers. “In
ancient time if a person was unable to work on a particular days, he was cared
for by the village community or by member of his family. But now urbanization
has so deeply uprooted these values that time in sickness, unemployment
superannuation and other similar contingencies a worker is nothing to fall back
upon. In modern time social security is influencing both social and economic
policy. Social security is the security that the State furnishes against the
risks which an individual of small means cannot, today, stand to by himself
even in private combination with his fellow.”[23]
Dynamic Change in
Industrial Jurisprudence in New Economic Policy
It is felt very severely that industry is the joint venture of employer
and workman. Justice Krishna Swamy Ayyer is stated that today, it has been made
the universe theory that labour is the backbone of any nation. But the new
economic policy is being endeavor to change the status of labour and wants to
use strength of labour accordance with his need. Capitalism now again will
prevail on our labour jurisprudence. The glimpses are being put on bellow:
(i)
The Government
of India has adopted a new economic policy which is based on the guidelines
given by World Bank and International Monetary Fund. These adopted guidelines
will be used to deprive the democratic and Trade Union rights of labour class
with a view to control their agitation and movement against such economic
policy. Of course the Appropriate Government is willing and agreed with new
exit policy will give the permission to the employer for closing down the
industrial establishment or retrenchment of workers within the radius of legal
system. The basic concept of democracy in the industry or Unionism will be
banished. Through this exit policy the Government will end the employment of
labour in huge numbers. The Government is going to frame the Labour Code and
will keep up the interests of Industrialists accordance with the same willing
the employer will restructure of his industry. With the effect of this ideology
the hire and fire theory will revived. It can be. But rather than employer will
train his employee with full skill and can imposed the time barred relieving to
workers from their services. In present time the Employer of the industry of
private sector resumed and gives effect through agreement. They escaped himself
from the hurdle of complicated Labour Legislations.
(ii)
At any time a
new industrial related Bill (1982) can be tabled in the Parliament. The
provisions of this Bill could be minimize the industrial democracy and will
prevent the labourers’ right to strike for his legal demand. But the related
provisions of penalty for illegal strike and locks-out are in Section-22 and
Section 24 of the I.D. Act, 1947. Industrial democracy is the integral part of
the labour jurisprudence. The rights of registered Trade Union could be
restricted and they could not make any agitation or take the liberty or benefits
of Sections 15, 16 or other privileges and immunities. By this way the
Appropriate Government will wipe out the various commitment points of ILO
conventions. It will be the main device to defeats objectives of Unionism.
Supreme Court has imposed the various restrictions on to do strike and held
that strike is an instrument of workmen for achieving their genuine demand. It
is also a step towards the prior theory of laissez-faire (no
intervention).
(iii)
“Globalised
world is a competitive world, where the employer has to remain constantly aware
of the production of cost. In the process the poor workers become an easy
target for the employers to keep the production cost low. It has been seen in
the recent past that the foreign investors in India press upon the Indian
Government that their industrial establishment should be exempted from the
application of Labour Laws of India, so that they enjoy the freedom to lay-off
or retrench the workmen, to establish or to close down his industrial
establishment at any time like at their convenience without observing statutory
provisions of obtaining permission of the Appropriate Government prior to
closing down their establishment or laying-off or retrenching their workmen or
hindrance in running their business in India.[24]
By the way an in the name of New Economic Policy the labour welfare
shall be suppressed. The employment of labour will be snatched. All aforesaid
policies are against the fundamental objective of the Constitution of India.
Conclusion
Labour legislation is
purporting to concerning to labour as well as industry. Labour legislation is
the outcome of the labour jurisprudence or industrial jurisprudence. Social
security, social equality and social justice are the fundamental principles of
labour legislation probably of any country. The economy of country and
international conventions of international organizations give the shape to be
such type of legislations. Such components are integral part of the industrial
jurisprudence from which the labour law derives. It is correctly opined that
“jurisprudence is the eye of law”[25].
Our labour legislations have encompassed the fundamental labour laws, social
security, social justice and welfare State. With this view any labour legislation
has took shape.
*****************************
[1] AIR 1960
SC 610.
[2] AIR 1978
SC 548.
[3]. Chandra; Mahesh,
Industrial Jurisprudence (1976) p. 31.
[4]. Report of the
National Commission on Labour, (1969), p. 56.
[5]. Mishra; Prof. S. N.,
Labour and Industrial Laws, 25th Ed. 2009 p. 3.
[6]. Chandra; Mahesh,
Industrial Jurisprudence p. 40.
[7]. Ibid. p. 49.
[8]. Ibid. p. 5.
[9]. Chakravarthi;
K. P., Labour Management and Industrial Relations, 1988, p 1.
[10]. Rao; E. M.,
Industrial Jurisprudence, First Ed. Pp. Vii and viii.
[11]. Rao; Prof. E. M.,
Industrial Jurisprudence, First Ed. 2003, P.- Lexis Nexis p. viii.
[12]. Teller; Ludwig,
Labour Dispute and Collective Bargaining, Vol. I., P. 536.
[13]. Sinha; Justice S.
B., Emerging Industrial Relations, Article Published in NYAY DEEP P. 45.
[14]. 26th
Session of ILO in Philadelphia held on 10th March 1944.
[15]. Malthus, T. R.;
Theory of the Constant Value of Labour.
[16]. Sec. 4 of the
Employees Compensation Act, 1923.
[17]. Sec. 25-F of I.D.
Act, 1947.
[18] Sec. 25-B
of I. D. Act, 1947.
[19]. Harold Joseph Laski
qoutes.
[20]. Singh, V.B.,
Edition- 1963 ‘Labour and Labour Relations’, ILI P-9.
[21]. K. Ramaswamy J, Air
India Statutory Corporation V. United Labour Union (1997) I LLJ 1113, 1135
(SC).
[22]. Gajendragadkar J, J.
K. Cotton Spg & Wvg Mills Co. Ltd. V. LAT (1996) II LLJ 436, 444 (SC).
[23]. Report of National
Commission on Labour, 1969, P-162.
[24]. Meenu Paul’s
published Article, “Chapter V-B of the I.D. Act, 1947: Significance for the
Industrial Workers in India in the Era of Globalization “ (2005) III LLJ p.
33.
[25]. Harold Joseph Laski
qoutes.
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