Report No. 122
Chapter V
The Forum, its Format, Jurisdiction and Personnel Manning the Same
5.1. To have a comprehensive view of the new model herein to be indicated and to appreciate its functional adaptability, it would be advantageous to briefly refer to the existing model devised by the Industrial Disputes Act, 1947, for resolution of industrial disputes.
5.2. Section 7 of the I.D. Act envisages setting up of Labour Courts for adjudication of industrial disputes relating to any matter specified in the Second Schedule to the Act. The qualifications prescribed for a person to be eligible to be appointed as the Presiding Officer of the Labour Court are such as would almost make it an impelling necessity to select persons from civil judiciary and therein lies the potentiality for spill over of all the technicalities, dilatoriness and formal approach quite evident in administration of civil justice.
To be a Presiding Officer of a Labour Court one has to be either a Judge of the High Court, sitting or retired, or has been, for a period of not less than three years, a District Judge or Additional District Judge, or has held any judicial office in India for not less than seven years, meaning thereby sitting or retired members of the subordinate judiciary, or has been a Presiding Officer of a Labour Court constituted under any of the State statutes for a period of not less than five years.
It would merely add to the length of this report if one were to refer to all those State statutes prescribing qualifications of eligibility for being appointed as Presiding Officer of Labour Court. In sum, they are such as would only make members of the State civil judiciary eligible for being appointed with the same undesirable consequences. The subject-matter of jurisdiction of the Labour Court is referable to topics set out in the Second Schedule of the I.D. Act. By and large, they involve day-to-day conditions of work in industrial establishments and indicate the grey areas where disputes might arise.
5.3. Section 7A confers power on the appropriate Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter specified in the Second Schedule or the Third Schedule. Sub-section (3) prescribes qualifications for being appointed as Presiding Officer of a Tribunal. To be eligible, one has to be either a sitting or a retired Judge of a High Court or District Judge or Additional District Judge for a period of three years. The criticism hereinbefore set out will apply mutatis mutandis to the present situation also which tends to perpetuate the hold of the judiciary dealing with administration of civil justice over Labour Courts and Industrial Tribunals.
5.4. Section 5 of the Industrial Disputes (Appellate Tribunal) Act, 1950, prescribed the qualifications for a member of the Labour Appellate Tribunal. The approach was the same. The qualifications were that 'the member, to be eligible for being appointed, is or has been a Judge of a High Court, or is qualified for appointment as a Judge of a High Court, or has been a member of an Industrial Tribunal for not less than two years'. The only opening made here for entry of persons other than members of civil judiciary was in favour of a practising advocate.
5.5. Way back in 1973, a Committee appointed by the Government of Gujarat, known as Labour Laws Review Committee, took notice of this situation when it observed as under:-
"The Judges so drawn from the civil judiciary do carry with them their life-long experience of administration of civil and criminal justice. Undoubtedly, they were the officers who had the perspective and objectivity of a Judge and their experience had taught them to look each dispute or problem coming before them from an objective standpoint. While administering socio-economic justice in Labour and Industrial Courts, this approach may not be very helpful.
The principal object of the labour laws is to smoothen the passage of State, having sole object of maintaining law and order, to Welfare State. For achieving ideal of a Welfare State, foundation of which is socio-economic justice, new norms of industrial relations have to be formulated, shaped and enforced. Targets set out in various Five Year Plans have to be kept in view.
In other words, social philosophy of the day is to be fully imbibed and given legal form by devising norms of socio-economic justice. The officer must have training and aptitude to understand how persons consigned to miserable existence are lifted and taken to tolerable existence, if not wholly civilized existence which should be the ideal The Judges who have worked for their whole active life in civil judiciary undoubtedly, with notable exceptions, may not be able to rise to the occasion and stand up to the requirement. No attempt has been made over a quarter of a century to create Labour Judicial Service."1
1. 1974 Report of the Labour Laws Review Committee, p. 20, para. 4.4.
5.6. As the first step, this Committee recommended that retired Judges or those about to retire from civil judiciary should not be inducted in the Industrial and Labour Courts and Industrial Tribunals.
5.7. One of the grounds in support of vociferous demand for abolition of Labour Appellate Tribunal was that the Judges manning the Tribunal were mostly drawn from the cadre of retired High Court Judges and, therefore, by habit, temperament and tradition, they were prone to be technical, formal and non-responsive to the demands of socio-economic justice.
Assuming that the demand for abolition of Labour Appellate Tribunal was an immature reaction of some persons annoyed by the slight delay in disposal of appeals by the Tribunal, the fact remains that those who had spent their whole active life in courts administering civil justice are prone to be precedent-oriented, technical, traditional and impervious, if not blind, to the utter inequalities of parties appearing before them when functioning as members of Tribunals set up to resolve industrial disputes.
If in their journey through life as Judges, they were accustomed to find out what the contract is and sincerely believed that parties must be held to their own contracts, it would be expecting too much from them to say that when taking up an industrial adjudication they will be looking at the unfairness of contracts and devise what contract ought to be, that is, what ought to be a fair relation between the employer and the workmen. This historical perspective is to be kept in view while devising a forum for resolution of industrial disputes, both at the State level and national level.
5.8. To sum up, three aspects have emerged from the preceding discussion and historical review since 1947 till today. In the absence of an all-India body having jurisdiction to reconcile conflicting awards of Labour Courts/Industrial Tribunals so as to frame a consistent noteworthy industrial jurisprudence within the perspective of Part IV of the Constitution, contradictory, conflicting and irreconcilable industrial relation norms have emerged. Secondly, the expectation that Supreme Court of India will supply this lacuna by providing quick uniformity has been wholly belied.
Thirdly, industrial adjudication cannot operate purely in a legal framework devoid of humanistic touch. It requires understanding of constitutional goals, humanities, social sciences, economic planning and national and international economic developments. In short, it is thus a field of specialist study and, therefore, must be a concern of specialist court. Finally, the fundamental consideration governing industrial adjudication being industrial peace and harmony creating fruitful environment for economic advancement of the nation, the adjudicator must have vision and capacity to move in that direction.
Over a period, industrial adjudication has developed all the trappings of civil litigation bringing in all its imperfections, limitations and disadvantages. A bold and innovative approach must dictate the choice. The solution lies in providing a system of participatory justice. Industrial adjudication is an area where a system of participatory justice with defined jurisdiction and powers can be introduced with advantage which will remove the ills so far noticed and set out above.
5.9. At the base level, a Labour Court, as contemplated by section 7 of I.D. Act, is functioning. It is generally a one man Tribunal, mostly manned by members drawn from civil judiciary. At this level, drawing upon our experience in the Report on Gram Nyayalaya, it is necessary to introduce a participatory model. The Judge of the Labour Court should be assisted by two lay Judges drawn from the rank of workmen and employers. Today, the Labour Court has all the trappings of a court administering civil justice.
It is desirable to transform the present model of Labour Court, which is formal and legalistic, to an informal and participatory model. The jurisdiction of the Labour Court covers items set out in the Second Schedule of the I.D. Act. A reference to Second Schedule will show at a glance that subjects therein set out are better dealt with by inter-action of all the three members constituting the Labour Court. The Labour Court can examine the propriety or legality of an order passed by an employer under the standing orders. It can examine the implications and interpolations of standing orders.
Matters covering these items are generally of a simple nature. Item No. 3 in the Second Schedule deals with 'Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed. The bulk of litigation in this field arises from discharge or dismissal of workmen and claim for reinstatement or other ancillary relief, such as, compensation for retrenchment, back wages where reinstatement is ordered, ancillary benefits if reinstatement is ordered after a long time.
It is here that interaction of a lay Judge coming from class of workmen with one coming from employer and a third having a legally trained mind would produce a result which would be more or less very satisfactory. Item No. 4 provides for withdrawal of any customary concession or privilege. Those who are working either as trade union leaders or in employer's association would be well conversant with what are customary concessions and privileges. Item No. 5 deals with illegality or otherwise of a strike or lockout. It appears crystal clear that the matters set out in the Second Schedule are such as can better be dealt with by a participatory model.
5.10. Industrial Tribunals have to be set up by the appropriate Government in exercise of the powers conferred by section 7A of I.D. Act. Central Government can set up a National Industrial Tribunal in exercise of the power conferred by section 7B for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.
Sub-section (2) of section 7B provides that a National Industrial Tribunal shall consist of one person only, to be appointed by the Central Government. By and large, this one man National Tribunal is generally presided over by a retired Judge of the High Court or of the Supreme Court. This model has been tested since 1956. Most of the awards of National Tribunals have been questioned in the High Courts and the Supreme Court. A new thinking and departure from present day set up is necessary in this behalf.
A participatory model, both at the National and State level, replacing the National Industrial Tribunal, and Industrial Tribunal respectively, would certainly be a step forward and hopefully result-oriented. Let it be made crystal clear that in this behalf we are not writing on a clean slate. National Commission on Labour has examined the advisability, desirability and the feasibility of introducing Industrial Relations Commission,1 both at the State and Central level. Sanat Mehta Committee,2 as late as 1982, endorsed the recommendation of the National Labour Commission.
The subsequent meeting of the Standing Labour Committee accepted the recommendation of Sanat Mehta Committee. We are influenced by this recommendation not only for all those reasons which appealed to those august bodies but also for the additional reason that the model of participatory justice can be conveniently introduced in the field of industrial adjudication. It would effectively help in decentralisation of administration of justice which is at present monolithic.
1. Report of the National Commission on Labour, pp. 332-335, paras. 23.61 to 23.65.
2. Sanat Mehta Committee Report, para. 2:1:2.
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