WORKER’S RIGHTS UNDER INDIAN CONSTITUTION

UNDER ARTICLE 14

Secretary State of Karnataka v. Umadevi (3), 2006 4SCC1,40  para 48, AIR 2006 SC 1806

Temporary, contractual, casual, daily wage or ad hoc employees appointed dehors the constitutional schemes of public employment form a class by themselves. They cannot claim that they are discriminated against vis-a-vis those who have been regularly recruited on the basis of the relevant rules, or claim to be treated on a par with the latter.

Para 42 of the judgment :

The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

ARTICLE 16

Union Territory, Chandigarh  v.  Krishan Bhandari (1996) 11 SCC 348 para 7

Article 16(1), read with Art 14 and 39(d), also guarantees equal pay for eual work, so that the court would strike down unequal scales of pay for identical work under the same employer, which is based on no classification or irrational classification. The principle of “equal pay for equal work” cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State.

L.K.Koolwal v. State of Rajasthan (AIR 1988 Raj 2)

“Maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action.”

 Lakshmipathy v. State of Karnataka (AIR 1992 Kant 57)

“Entitlement to clean environment is one of the recognised basic human rights…..The right to life inherent in Art.21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.”

Chetriya Pardushan Mukti Sangarsh Samiti v. State of UP (AIR 1990 SC 2060)

 “Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything, which endangers or impairs that quality of life, is entitled to take recourse to Article 32 of the Constitution of India”

Virendra Gaur v. State of Haryana (1995 2 SCC 577)

“Article 21 protects right to life as a fundamental right. Enjoyment of the life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts would cause environmental pollution. Environmental, ecological, air, water pollution etc., should be regarded as amounting to violation of Article 21.”

Vishakha v.  State of Rajasthan and ors. AIR 1997 SC 3011

In the case of Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384), the Hon’ble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women.

2. It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or implication) as :-

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. Attention in this connection is invited to Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964, which provides that every Government servant shall at all times do nothing which is unbecoming of a Government servant. Any act of sexual harassment of women employees is definitely unbecoming of a Government servant and amounts to a misconduct. Appropriate disciplinary action should be initiated in such cases against the delinquent Government servant in accordance with the rules.

4. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the concerned authorities shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

5. In particular, it should be ensured that victims, or witnesses are not victimized or discriminated against while dealing with complaints or sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

6. Complaint Mechanism :- Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in every organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. Wherever such machineries for redressal of grievance already exist, they may be made more effective and in particular women officers should preferably handle such complaints.

7. Awareness :- Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines  in a suitable manner.

More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guidelines to deal with the problems of sexual harassment of women at the work place (Vishaka v. State of Rajasthan (1997) 6 SCC 241.). The right of workmen to be heard at the stage of winding up of a company was a contentious issue. In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three. The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management. The court observed: It is therefore idle to contend 32 years after coming into force of the Constitution and particularly after the introduction of article 43-A in the Constitution that the workers should have no voice in the determination of the question whether the enterprises should continue to run or be shut down under an order of the court.

It would indeed be strange that the workers who have contributed to the building of the enterprise as a centre of economic power should have no right to be heard when it is sought to demolish that centre of economic power National Textile Workers Union v. P. R. Ramakrishnan (1983) 1 SCC 249.

ARTICLE 23

RIGHT AGAINST EXPLOITATION

M.C.Mehta v. State of Tamilnadu AIR 1997 SC 699

Child labour shall not be engaged in hazardous employment. There shall be set up child labour rehabilitation welfare fund in which offending employer should deposit Rs.20000. Adult member of such child should be given employment.

Peoples Union For Democratic  v Union Of India & OthersAIR 1982 SC 1473

Sanjit v.  State of Rajasthan   AIR 1983 SC 328

An exception is made for compulsory service for public purposes, under clause 2 of this article, obviously the imposition of such service has to be by law, as a mere executive order of the State would not suffice for the purpose. It has been held that even if remuneration is paid for the labour still, if it is forced, then it is unconstitutional.

ARTICLE 24

M.C.Mehta v. State of Tamilnadu AIR (1991) 1 SCC 283

The Supreme Court has directed that children should not be employed in hazardous jobs in factories and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

Peoples Union For Democratic  v  Union Of India & OthersAIR 1982 SC 1473

The right enshrined in this article is enforceable even in the absence of implementing legislation and in a “public interest” proceeding.

ARTICLE 37

The question whether a person who ceases to be a government servant according to law should be rehabilitated by being given an alternative employment is, as the law stands today, a matter of policy on which the court has no voice.( K.Rajendran v. State of Tamil Nadu (1982) 2 SCC 273, para. 34, p. 294.). But the court has since then felt freer to interfere even in areas which would have been considered to be in the domain of the policy of the executive. Where the issue was of regularizing the services of a large number of casual (nonpermanent) workers in the posts and telegraphs department of the government, the court has not hesitated to invoke the DPSP to direct such regularization. The explanation was:

Even though the above directive principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination. It is urged that the State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that state. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable . . . It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance.

ARTICLE 39(d)

GRIH KALYAN KENDRA WORKERS UNION vs. UNION OF INDIA (AIR 1991 SC 1773)

In this case the Apex Court while dealing with Article 39(d) (Equal pay for equal work) held thus:

“Equal pay for equal work is not expressly declared by the Constitution as a Fundamental Right but in view of the Directive Principles of State Policy as contained in Art. 39(d) of the Constitution “equal pay for equal work” has assumed the status of the Fundamental Right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 17 of the Constitution”. 

State Bank of India  v.   M.R. Ganesh Babu  (AIR 2002 SC 1955) (a) Arts. 39(d), 16

A.P. Angsumohan vs. State of Tripura : AIR 2004 SC 267

State of Bihar Vs. S.P.M. Staff Union : AIR 2002 SC 2145

For applicability of the rule equal pay for equal work, the relevant criterion is nature of work and not volume of work done. Functions may be the same, but responsibility makes the difference. Persons were holding similar posts and doing similar work, difference being only in degree of responsibility, reliability and confidentiality, it was held that it affords valid ground to give them different pay scales. Further, the Officers in junior management grade of the Bank had challenged the benefit of higher starting pay given to Probationary Officer, Trainee Officer and Rural Development Officer (Generalist Officers), but denied to Specialist Officers such as Asstt. Law Officer, Security Officer, Asstt. Engineer etc. Such denial of higher start to Specialist officers was held to be justified on the ground that the Specialist Officers were not exposed to operational risk and do not take vital decisions as taken by Generalist Officers. When it comes to question of pay scales and pay benefits, the recommendations of Pay Commission, pay structure adopted by Government pursuant to such recommendation, questions regarding equivalence of posts, nature of duties and responsibilities attached to the post are the relevant considerations. Advocates working as part-time lecturers on purely contractual basis, have no legal right to obtain writ of or in nature of mandamus directing authorities to grant minimum scale of pay of Assistant Professors. They being no in regular employment, principles of service jurisprudence cannot be extended to an advocate who is acting as part time lecturer.

Randhir Singh VS. Union of India (1992 (1) SCC 618)

In this case, the Supreme Court once again dealing with Article 39(d) of the Constitution emphasized the importance of Directive Principles of State Policy by declaring that “equal pay for equal work” is not a mere demagogic slogar but it is a constitutional goal capable of attaining through Constitutional remedies. The Court went on to declare thus:

“Directive Principles as even pointed out in some of the Judgments of this Court, have to be read into the Fundamental Rights as a matter of interpretation”.

Mahatma Phule Agricultural University vs. Nasik Zilla Sheth Kamgar Union (2001 AIR SCW 3105),

A.I.I.M.S. Students Union  VS. A.I.I.M.S. and others (2001 AIR SCW 3143) articles. 14, pre, 41, 47, 51a, 226

Some daily wagers in Agricultural Universities raised dispute on the principle of equal pay for equal work. The award passed granting higher rate of wages was held to apply even to daily wagers not covered by award in view of principles of equal pay for equal work. Reservation other than constitutional reservation was held to be subversion of fraternity, unity,. integrity and dignity of individual and fundamental duties cast on citizens. They are relevant in determining reasonableness of reservation. It was further observed that extending reservation beyond under-graduate medical education is keeping the crippled, crippled forever.

ARTICLE 41

Consumer education & research centre and others vs. Union of India and others (AIR 1995 SC 922)

The case relating to remedial measures for the protection of health of the workers engaged in mines and asbestos industries came up before the Supreme Court for consideration in a petition filed under Art. 32 of the Constitution by way of Public Interest Litigation. The Supreme Court by interpreting the Preamble, Articles 21, 38, 39(e), 41, 43(a), 48A in the background of the concept of social justice, virtually included the Directive Principles within the fold of right to life and the expanded meaning given to the expression ‘life’ by the Supreme Court led to many of the Directive Principles being equated to inalienable right to life. The Supreme Court in this case observed thus: 

“Right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental Human Rights to make the life of the workman meaningful and purposeful with dignity of person”.

Air India Statutory Corporation vs. United labour Union (AIR 1997 SC 645)

The question of abolishing contract labour system and absorbing the employees who were contract labourers under the appellant, came up for consideration before the Supreme Court in this case. Once again, the issue of right to work was the borne of contention between the parties. The Supreme Court referring to Directive Principles observed thus: 

“The Directive Principles in our Constitution are forerunners of the UNO convention of right of development as inalienable Human Rights. The said principles are embedded as integral part of our Constitution in the Directive Principles. Therefore, the Directive Principles now stand elevated to inalienable fundamental Human Rights. Even they are justiciable by themselves”.

Gujarat agricultural university vs. Rathod labhu bechar & others (2001 AIR SCW 351)

A scheme was formulated for absorption of daily wage workers of Gujarat Agricultural University completing 10 years of service, in a phased manner. Upholding its viability, it was held that the financial viability was no ground to disentitle claim of workman and financial means have to be stretched to the maximum and maximum posts should be created even at first stage of absorption. Workers who are not regularized, were entitled to minimum wage as prescribed by Govt. from time to time as proposed under the scheme and not pay scale as admissible to incumbent regularized on similar post doing similar work.

ARTICLE – 42

Patnaik D. Bhuvan Mohan  v.   State of A.P.  AIR 1974 SC 2092 (Para 11): (1975)3 SCC185

The provision in this Article in the Maternity Benefit Act,1961 entitling maternity leave to women engaged on casual basis or on muster roll basis on daily wages and not only to those in regular employment, are wholly in consonance with the Article 42.

ARTICLE -43

Nakara D.S. v.  U.O.I. [AIR 1983 SC 130 Para 32-33]: (1983)1SCC 305: 1983(1) LLJ 104.

Article 39(c), 41, 43 these provisions aim at establishing a socialist State as envisaged by the Preamble, which would endeavour to secure a decent standard of life and economic security to the working people.

Right to Strike: Constitutional Realm

The Administrative Tribunals may act as speedy machinery for redressal of the grievances of the employees in the service matters, but when 1,70,000 employees are dismissed en masse ,as in T.KRangarajan v. State of Tamil Nadu [2003 RD-SC 357]( it is not a trivial service matter but a matter relating to right to life, that is a fundamental right guaranteed under Article 21 of the constitution. It becomes obligatory on the constitutional courts, which exercise the writ jurisdiction to embroil themselves in to the grave situation. Moreover the administrative tribunals are quasi judicial bodies which sometimes act according to the executive whims and fancies rather than judicial principles. Article 19 (c) of the Constitution of India provides freedom to form associations and unions. The term union’s also include trade unions.

The conditions of service of the central government employees are governed by the rules made by the president under Article 309 of the constitution or under the Act of the parliament enacted under the same rule. In Union of India v. Tulsi Ram Patel (1985) 3 SCC398it was stated that the opening words of article 309 "subject to the provisions of the constitution" make it clear that the conditions of service, whether laid down by the legislature or prescribed by the rules, must confirm to the mandatory provisions of the constitution.

Article 43-A of the constitution speaks about the participation of workers in management of industries. It says that the state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. If the workers require supporting their stand in parlance with the management an effective action like the right to strike needs to be at their reach. In Radhe Shyam Sharma v. Post Master General [AIR 1965 SC 31] it was stated that Article 43-A of the Constitution clearly states that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organization engaged in any industry. The High-powered Expert Committee on Companies and MRTP Acts headed by Rajinder Sachar J. of the Delhi High Court has also made certain recommendations about provisions to be made for workers' participation in management of companies.

 Ahmadi J. in B.R. Singh v. Union of India [1989] RD-SC 291 observed:

"The right to form associations or unions is a fundamental right under Article 19 (1) (c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively; reduced if it is not permitted to demonstrate. "Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers".  It has become a ubiquitous practice to blame the workers for the man days lost due to the strike, but why aren’t the employers blamed for the lock outs? The industrialists according to their profit motive end up the lives of the dependent workers in enigma. The recent statistics show that the numbers of man days lost due to lock outs are more than that of strikes.

Judiciary on Right to Strike

A series of judicial decisions emphasized on the legality or the illegality of the strike, but did not impose a ban on the right to strike. InManagement of Kairbeta Estate, Kotagiri v.Rajamanickan (1960) 3 SCR 371: (AIR 1960 SC 893)

The full bench observed that, just as a strike is a weapon available to the employees for enforcing their individual demands, a lockout is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. In the struggle between the capital and the labour, the weapon of strike is available with the labour.

It was also held that, strike a weapon to force the employer to accede to employees demand and to give them the legitimate dues is a strike which is recognised under the Industrial Disputes Act as defined in Sec 2 (q). In Bank of India v. I.S. Kalewala (1990) 2 Lab & IC 39, the constitutional bench held that, whether the strike is legal or justified is question of fact to be decided with the help of the evidence on record.

In Crompton Greaves Ltd v. Workmen [1971] RD-SC 211, the division bench held it that a strike is legal if it does not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the reasons for it are entirely perverse and unreasonable. Whether a particular strike was justified or not is a question of fact which has to be justified in the light of the facts and circumstances of each case.

In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen AIR 1960 SC 902, a division bench judgment, there was a dispute between the management and the workers and the labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of the recalcitrant attitude of the management in boycotting the conference, held on 23rd November, 1961 by the labour minister of the state was not unjustified. It was also held in this case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect labour to wait till after the government takes notice. In such cases, strike even before such a request has been made may well be justified.

RIGHT TO SHELTER

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123

in the context of eviction of encroachers in a busy locality of Ahmadabad city, the court said: “Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status. It positively charges the State to distribute its largesse to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make life worth living with dignity of person and equality of status and to constantly improve excellence. Though no person has a right to encroach and erect structures or otherwise on footpaths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful.”

Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 the court held that the right to life included the right to livelihood. The petitioners contended that since they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their eviction would be tantamount to deprivation of their life and hence be unconstitutional. The court, however, was not prepared to go that far. It denied that contention, saying:

No one has the right to make use of a public property for a private purpose without requisite authorisation and, therefore, it is erroneous to contend that pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon . . . If a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his use of the pavement would become unauthorised.

Later benches of the Supreme Court have followed the Olga Tellis dictum with approval. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101. the court held that the Municipal Corporation of Delhi had no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legal enforceable right. In Sodan Singh case (1989) 4 SCC 155 a constitution bench of the Supreme Court reiterated that the question whether there can at all be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trade must be answered in the negative. These cases fail to account for socioeconomic compulsions that give rise to pavement dwelling and restrict their examination of the problem from a purely statutory point of view rather than the human rights perspective.

RIGHT TO HEALTH

The right to health has been perhaps the least difficult area for the court in terms of justiciability, but not in terms of enforceability. Article 47 of DPSP provides for the duty of the state to improve public health. However, the court has always recognized the right to health as being an integral part of the right to life Francis Coralie Mullin, note 3 above; Parmanand Katara v. Union of India (1989) 4 SCC 286 . The principle got tested in the case of an agricultural laborer whose condition, after a fall from a running train, worsened considerably when as many as seven government hospitals in Calcutta refused to admit him as they did not have beds vacant. The Supreme Court did not stop at declaring the right to health to be a fundamental right and at enforcing that right of the laborer by asking the Government of West Bengal to pay him compensation for the loss suffered. It directed the government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency ( Paschim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37) .

State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, para. 29, p.130. A note of caution was struck when government employees protested against the reduction of their entitlements to medical care.

The court said:

No State or country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision on facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. The principle of fixation of rate and scale under the new policy is justified and cannot be held to be violative of article 21 or article 47 of the Constitution.