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Report No. 122

Forum for National Uniformity in Labour Adjudication

Chapter I

Introduction

1.1. One of the tasks assigned to the present Law Commission is to study measures for judicial reforms and to recommend innovative suggestions, inter alia, with a view to decentralise the system of administration of justice, amongst others, by establishing other tiers or systems within the judicial hierarchy to reduce the volume of work in the Supreme Court and the High Courts.

One of the ways indicated in the Terms of Reference in the Context of Studying Judicial Reforms is to devise specialist tribunals as envisaged in Part XIVA of the Constitution for expeditious resolution of causes and controversies coming before generalist courts, including Supreme Court and the High Courts.

1.2. The Law Commission submitted a Report recommending setting up of Central Tax Courts for dealing with causes and controversies under Direct Tax Laws, Indirect Tax Laws, and Export and Import Regulations1. In that Report, detailed analysis has been made for decentralisation of monolithic system of administration of justice as operating in India today.

Conceding that at the trial level, there are specialist courts and tribunals dealing with disputes arising under different sets of laws, the High Courts enjoy the Constitutional power of judicial review over decisions of all the specialist courts and tribunals. There was thus a fusion of specialist and generalist court work at the High Court level as also in the Supreme Court. The fallout was that at the High Court level, all sorts of causes and controversies of specialist nature were dealt with by non-specialist Judges.

The need for decentralisation with a view to providing specialist appellate level bodies has been reasoned out in that Report and in continuation of those reasons, the present report deals with the questions of suggesting an all-India forum for bringing about uniformity in the matters/disputes arising under numerous labour laws.

1. LCI, 115th Report on Tax Courts

1.3. The need for setting up specialist courts and tribunals has been felt in almost all common law countries. The movement to specialised jurisdiction is thus common to many parts of the world. The various industrial jurisdictions which have existed in Australia throughout the present century are unique in character1. The Tax Court and Emergency Court of Appeals in America are specific examples of specialist courts. Not that this method of setting up specialist courts by decentralisation of administration of justice is without a caveat.

The protagonists of the specialist courts assert that knowledgeable Judges would not need to be educated about how the instant dispute fits into the broader corpus of law. As a consequence, specialist Judges could resolve questions faster and perhaps more 'correctly' without as much effort on the part of counsel to teach them the law.

Further, specialist Judges could devote more time to individual matters without the press of other business. Limiting certain acts of litigation to a single specialist court would ensure uniformity and predictability and allow lawyers to settle more disputes without resort to all the courts. In sum, efficiency and predictability are said to result when a court hearing dispute works constantly with the law to be applied2.

The opponents of specialist court assert that setting up specialist court would result in isolation and less research and scrutiny of the arguments if certain class of cases are withdrawn from judicial mainstream3. There is a tendency in the Bar to treat specialist courts as inferior courts regardless of their place in the judicial hierarchy. Members of the Bar are less prone to accept judgeship in specialist courts. This fear in Indian condition is wholly unwarranted.

1. James Crawford Australian Courts of Law, p. 260.

2. Ellen R. Jordan: Should Litigants have a choice between specialised Courts and Courts of General Jurisdiction?-66 Judicature 14-17(1980).

3. Ibid.

1.4. Decentralisation of administration of justice has taken place by setting up numerous types of specialist courts. The known specialist courts in Australia are: (1) Children's Courts, (2) Family Courts, (3) Industrial Courts, Commissions and Boards, (4) Small Claims Courts and Tribunals, (5) Coroner's Courts, (6) Licensing Courts, (7) Warden's Courts, (8) Land and Environment Court, (9) A Local Government Court, (10) A Market Court, (11) Miner's Courts, etc.1 Requirements of informality and expertise provide an adequate support to such specialist courts. This is in contrast with the impression of laymen about ordinary courts as excessively formal and lacking in expertise.

1. James Crawford Australian Courts of Law, pp. 251-253.

1.5. A reform movement is in process to modernise court structure and administration and to achieve additional court related objectives around which some consensus has developed.1

1. H. Ted Rubin The Courts, p. 208.

1.6. Since a demand for specialist court for dealing with disputes arising under labour laws, as distinct from general civil jurisdiction courts, is founded on the assumption that while the courts of general civil jurisdiction would take the contract as it is, the formal approach would be inconsistent with courts set up to resolve disputes between the employers and workmen where the approach is what ought to be the contract.

To some extent, it was also a response to the mounting case law problems in generalist courts. As work proliferates, lawyers are getting increasingly specialised. In America, solo practitioners have largely joined partnerships, solo local firms are being supplemented by national firms. If that be so, the inter-relation between the Bar and the Bench can be established by providing more specialist courts with knowledgeable Judges of the special nature of the disputes coming before the specialist courts.

One's possible response to this greater specialisation amongst Judges is that while no one advocates the demise of the generalist judiciary, complex cases requiring technical knowledge and an insight into the inter-relation between the partieS and the nature of lis are not always handled well by Judges with no expertise in the particular area of law involved.

1.7. Judges dealing with disputes under numerous labour laws must be equipped in humanities, social sciences, need for socio-economic justice, unequal position of parties to the dispute, the national economy, goals of planning and the shape of future society which the Constitution envisages. In short, they must have knowledge of all aspects which will help them in balancing the individual need and the social good.

1.8. Law reform to be effective must reflect the views of those likely to be affected by the change suggested as also the society at large, which is vitally interested in the development of law as an instrument of social engineering. In order to reach the interest groups concerned with administration of labour laws in this country, the Law Commission drew up a comprehensive working paper to which a short questionnaire was added in the hope that the attention of those interested in the discussion would be focussed on the specifics with which the Commission would deal in this report.

It may appear that the tentative approach of the Commission in the working paper undergoes refinement when the final report emerges. This should be so in the very nature of things because it shows the impact of suggestions received, discussions and deliberations heard and the recent literature dealing with the subject. For proper appreciation, the working paper is annexed to this report as Appendix I.

1.9. The Law Commission is also happy to record that central trade unions, employers' organisation and various other interest groups positively responded to the working paper and the questionnaire and we owe a debt of gratitude to them in that they helped us in formulating our recommendations. A measure of consensus has laid the foundation of this report.



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