infrastructural support including maintenance of case records. ...... Many times, the union leaders make champertous agreements with the workers while.
LABOUR COURTS ADMINISTRATION IN INDIA Dr. Debi S. Saini Institute for Integrated Learning In Management I. INTRODUCTION Quite like the way various interest groups in society play their role, employers and employees in industry are also often seen as pursuing sectional interest. Industry is sometimes rightly described as .a microcosm of the larger society (Ghosh, 1992:3). Employers are often seen attempting to minimize labour costs -- which are the largest expenditure of an enterprise (Dunlop, 1993); workers on the other hand are concerned at securing a dignity of work life, a living wage and participation in industrial governance. Classical industrial relations (IR) theory has emphasized the pursuit of sectional interest by each social partner. However, the contemporary IR scholarship even in the developed world points towards collaboration -- rather than confrontation -- in promoting commonality of interests. India has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No.144) of the International Labour Organization (ILO) and is therefore committed to promote tripartism, which is essential for promoting such commonality. While all societies provide mechanism for industrial conflict resolution to maintain industrial peace, provision of an efficacious system of labour disputes settlement is increasingly becoming the concern of globalizing economies on a priority basis so as to provide a conducive environment for the foreign private investments. In the liberalized framework in which competition is tending to dominate the working of the market mechanism, the employers are themselves devising ways of minimizing industrial conflict. There are emerging strategies of union avoidance at the new worksites, carving out innovative instrumentalities of human resource development, productivity bargaining, etc. Despite this, however, elimination of industrial conflict altogether cannot be wished away. And, the State has to take a proactive stand in ensuring expedient resolution of industrial disputes. The East Asian economies like, among others, Rep. of Korea, Taiwan, Singapore, Hong Kong and Thailand have emerged as the leading newly industrializing countries (NICs), and are witnessing reorganization of the labour process and the workplace regime. But their success stories are also attributable to the efficient labour disputes settlement, in their effort of rapid development of labour markets to answer the exigencies of export oriented manufacturing. Such success stories create interest in comparative industrial relations, a discipline which has grown in the past decade or so. Likewise, greater interest is shown in comparative industrial conflict processing so as to know more convincingly through what modes workplace consent is obtained or manufactured (Burawoy, 1979). India too is wanting to catch up with the NICs to confront its alarming problems of foreign exchange, fiscal deficit and rising internal as well as external debt. The July 1991 economic policy of the government envisages a sharp break from the past economic regulatory practices. The new economic thinking is bound to be reflected in the Indian industrial relations model as well, though no significant change has so far taken place in the massive labour law framework in the country. The new policy is feared to result in greater degree of unemployment due to the resultant increased sickness in the small- and medium-scale units at least in the short run, and is also likely to eventually
result in reduction in the unionized workforce in the time to come. Many factors like technological innovations, move from manufacturing to services, higher education levels, and increase in female employment have led to the emergence of the new worker, who is young, educated, white-collared, ambitious, and prefers to belong to a business rather than a political union. He or she is more likely to accept schemes of productivity bargaining. But at the same time the worker is not likely to be tolerant to any repressive labour justice system. The contours of competition have led to the shrinkage in the negotiating area of the employer. The new dispensation is leading to a tendency for substituting capital for labour, especially wherever there is a choice of technology. It will become difficult for the State to sustain a highly regulated labour law framework in the new era, as is being proved the world over in the developing as well as the developed countries. Come what may, however, the State cannot ignore the reasonable expectations of the working people and the importance of industrial peace. To promote the success of the new economic model -- which emphasizes competition, delicensing, absence of controls on capital issues, liberal invitation for technology imports and foreign investments -- an effective system of labour disputes settlement shall have to be ensured. Such a system has to project positive messages to work as an effective and expeditious instrument of industrial justice dispensation. The Industrial Disputes Act 1947 (IDA) is the principal central industrial relations law in India. This law has its genesis in the Rule 81-A of the Defence of India Rules framed by the British colonial rulers during the Second World War so as to meet their war needs. It envisaged compulsory adjudication of industrial disputes in the event of a deadlock in negotiations. After independence in 1947, the Indian State chose to formalize the institution of compulsory adjudication through the IDA. The hallmark of this law is adjudication of basically the rights disputes between employers and workers by labour courts and the rights as well as interests disputes by industrial tribunals. Interest disputes here refer to those disputes which relate to prospective terms of employment of worker-collectives as interest groups, such as those involving issues like wages, fringe benefits, bonus, rationalization, hours of work and working conditions. Rights disputes on the other hand relate to the existing contract of employment, such as issues concerning dismissal, discharge, interpretation of employment contract and bargaining agreement, promotion, transfer, and wage payments. While interest disputes are usually of collective nature, rights disputes may relate to an individual worker or a group of workers. In the latter case, it is known as a collective rights dispute. The reference of both collective and individual disputes to the adjudicatory bodies is not direct, but is at the discretion of the appropriate government. We have worked this model for more than 50 years, which has resulted into what may be described as the compulsory adjudication syndrome (Saini, 1995:19). Any discourse on industrial relations law in India gets centered around the structural framework of the IDA, which provides for applicability of the compulsory adjudication model to both the rights and interest disputes. The advanced world has, however, maintained a significant distinction between the two. As per this distinction, industrial relations as well as law-and-society scholars understand interest disputes as political disputes needing the political process of a negotiated settlement (See, for example, Gulliver, 1969:92-23; Abel, 1973: 232; Aubert, 1963). Rights disputes on the other hand are supposed to be the domain of labour courts which are manned by judges and industrial relations experts. Lawyers almost all over the world play an important role
in their handling. Independent India has witnessed many attempts to replace the labour adjudication model by a collective bargaining model. But no such attempt has succeeded so far. We don’t even have a national law providing for recognition of trade unions by employers, even as the Trade Unions Act of 1926 is nearly 70 years old and provides freedom to register a trade union and to espouse and pursue trade disputes. The politically affiliated unions in the country have so worked that. they have accepted the state crutch through the IDA as their fate or even as a labour-empowerment instrument. They are not convinced that a law of minimum floor of rights for collective bargaining (KahnFreund, 1977) would be enough. That is why, they have rarely challenged the bureaucratized labour law framework of the IDA, the single most important law in the country after the Constitution. Perhaps, for the first time, a projectedly non-politicized union federation led by Datta Samant challenged vigorously during the Bombay Textile Strike of 1982 the basic framework of the IDA and the Bombay Industrial Relations Act (BIRA) as producing legalism and consultationism (Bhattacharjee, 1988). He charged that this interventionist framework has also promoted a nexus between employers and established political unions (Sengupta, 1993: 16; also see Saini, 1995 for a discussion on somewhat similar lines). Interestingly, the Indian State has not succeeded in bringing about reforms in the basic IDA framework, even as various commissions and committees were appointed to facilitate evolution of a more efficacious industrial disputes resolution system. The most basic recommendation for a change in the IDA framework came from the National Commission on Labour, 1969 (NCL), which pleaded for the creation of autonomous Industrial Relations Commissions (IRCs) with conciliation and adjudication powers, so as to eventually lead to a gradual switch over to the collective bargaining model. We have very little empirical evidence of the actual working of the IDA and its institutional framework. What does it do? Who derives greater benefit from its working? What influence has it made on union leaders and the collective bargaining system? Has it promoted peaceful-co existence alliances? These remain much unresearched questions in actual field settings. A very useful monograph was produced by Munson and Nanda (1966) to argue that the Indian. Labour law framework has directed unions into legal channels. Later on, Ramaswamy (1984) studied the role of state in Indian Industrial relations through its conciliation and labour administration powers. The sociology of law has been a neglected enterprise in India even as some beginnings are being witnessed (See Baxi, 1982; Dhawan, 1989; Galanter, 1989, 1981, 1974). But this neglet is more so in labour law studies. Lately, Saini (1994a, 1995) has brought out an in-depth disputes-focussed sociolegal research based on qualitative data formulations, on the working of the “compulsory adjudication model” (which is used in this paper interchangeably with the “labour court model”). This research reveals, what the labour court model has done, and has attempted to answer many of the above-mentioned questions. But it is neutral to the question, whether the collective bargaining model would have provided more efficacious industrial justice dispensation, in the Indian sociopolitical context. The data brought out by Ramaswamy (1984) and Saini (1994a, 1995) need the attention of policy makers and of all those who feel concerned for dispensation of labour justice to the working people. Like the approach of these two researches, systemic re-examination is only one aspect of assessing
the labour court model in India. The other aspect concerns a more efficacious working of the existing structures. The data in this regard is available from the Ministry of Labour, Government of India, through its labour bureau; an analysis of some important aspects relating to which is done in section III of this paper. To the official thinking, actually speaking, the question of efficaciousness of the industrial justice system has meant a quick disposal of labour disputes. Surely, that is an important aspect, but perhaps not the most important one. The test of an industrial relations system cannot merely be industrial peace or prevention of work stoppages. Perhaps a better measure would be “observance of labour standards” (Nath, 1995:179) as evolved at the level of the International Labour Organization (ILO) and endorsed by the Indian State, or otherwise projected by the Indian Constitution and the State policy. The paper has attempted to discuss both the questions in its various sections. In the end it makes suggestions and policy recommendations. Also raised are issues for a more elaborate discussion on certain aspects related to some of the administrative dimensions of the adjudication system. II. THE LABOUR COURT SYSTEM IN INDIA “Labour Court” as used in the title of this paper is treated as a generic term to denote all adjudicatory bodies envisaged under the IDA. These are Labour Courts (Sec.7), Tribunals (Sec. 7-A), and National Tribunals (Sec. 7-B). The term ‘labour court system’ or ‘labour court model’ here refers to the adjudication system, also popularly known as the compulsory adjudication system. The labour court system as understood here is a counterpart of the collective bargaining model used in most advanced countries -- of course with varied structural configurations. The labour court model is known as compulsory adjudication system because it gives powers to government in its discretion to refer an industrial dispute for adjudication. Under the IDA, the central (federal) as well as state governments in their respective jurisdictions, as understood from the meaning of the term ‘appropriate government’, have been conferred such a power in respect of existing or apprehended “industrial disputes” -- interest as well as rights and collective as well as individual [Sec. 10(1)]. Government can do so even if both parties are opposed to such a reference. However, the disputant parties may themselves agree that an industrial dispute between them must be decided by an adjudicatory body, in which case the appropriate government must refer the dispute for adjudication [Sec. 10(2)]. Under the IDA the central government is the “appropriate government” [Sec. 2(a)] in relation to industrial disputes concerning any industry carried on by or under the authority of the central government or by a railway company or concerning a controlled industry or in relation to a mine or a major port or in relation to certain specified public corporations like, among others, Life Insurance Corporation, Air India, Food Corporation of India, a banking or an insurance company, etc. In relation to other industrial establishments, the respective state governments in whose jurisdiction the establishment is located, will be the appropriate government. The appropriate government not only arranges to provide for conciliation and reference of industrial disputes for adjudication, but also receives and publishes the awards of the adjudicatory bodies. It is also charged with enforcing the awards of an adjudicatory body and settlements entered into, between disputant parties either bilaterally [Sec. 2(p), 18] or through the efforts of a conciliation officer [Sec. 12(3)] or a Board of
Conciliation [Sec. 13(2)]. It is authorised to prosecute any person who breaches any term of a settlement or an award [Sec. 29]. That is how both sets of appropriate governments have created labour departments to enforce various labour laws including the IDA in their respective jurisdictions. Thus we have a Central Labour Relations Machinery and a Labour Relations Machinery in each state. The jurisdiction and functioning of the adjudicatory bodies under the IDA and the rules of procedure which they may follow are explained in section V of this paper under the sub-headings “constitution of the adjudicatory bodies”, and “procedure and approach of the adjudicatory bodies”. That section also discusses in detail, the projected objectives of the labour court system and the extent to which they are being realised. In the present section, we will focus on certain other aspects of these bodies, such as espousal of industrial disputes before them, role of registrar and right to appeal against the awards of the adjudicatory bodies. The term ‘Industrial dispute” [Sec. 2(k)] as used in the IDA has been understood in the sense of a collective dispute. It means that ordinarily an individual cannot raise an industrial dispute before any of the authorities [Chapter III, IDA] including the adjudicatory bodies -- the other authorities envisaged in chapter III are Works Committee, Conciliation Officer, Board of Conciliation, and Court of Enquiry. The IDA also provides for reference of disputes for voluntary arbitration, where too the reference is made by the appropriate government [Sec. 10-A]. In order to become an industrial dispute, a dispute must be collectively espoused by a substantial number of persons or a union. Thus if a dispute relates to an individual worker, say relating to his or her promotion, transfer, or other such grievances, it can only be collectively espoused in the manner stated above. However, by an amendment to the IDA in 1952, individual disputes relating only to discharge, dismissal, retrenchment or otherwise termination of a worker can be espoused by the worker concerned himself or herself [Sec. 2-A]. Usually the conciliation stage is involved in every industrial dispute, even though as per the IDA the conciliation officer (CO) has the discretion of holding or not holding conciliation proceedings [Sec. 12(1)]. Conciliation proceedings must be held where the dispute relates to a public utility service if a notice of strike or lockout has been given by a disputant party [Sec. 12(1)]. The appropriate government’s decision to refer a dispute for adjudication is usually made after and on the basis of a “failure report” has been submitted by the CO, though government is empowered to make reference even without considering this report or even without conciliation having taken place at all. When the appropriate government refers a dispute to an adjudicatory body, it may prohibit the continuance of a strike or a lockout that may be in existence at the time of such reference. After a dispute is referred by the appropriate government for adjudication, the adjudicatory body issues notices to the disputant parties to appear before it. The IDA provides that these bodies “shall follow such procedure” as it “may-think fit” [Sec.11 (1)]. This aspect has been discussed in detail in section V of this paper. Saini (1994a:29) notes the usual procedure followed by them in actual practice and finds little difference between the civil courts procedure and the one followed by these bodies. No pre-trial hearings take place at the level of these bodies. Rather, they have been observed to discourage any such or similar requests (ibid.). Sometimes, however, parties on their own enter into a settlement and submit it to the adjudicatory body to request it to convert such a settlement into a settlement award. The Presiding Officer’s (PO) duty is to see that the settlement is just and fair.
Saini (1991a:122) finds that in collective disputes cases -- in a five year period in Faridabad - on an average 36.4 percent disputes were converted into “Settlement Awards” and 39 percent disputes were abandoned by workers so as to be converted into “No Dispute Awards”. Only 24.6 per cent collective disputes that were referred by the appropriate government resulted into “Contest Awards”. The registrar’s work at the labour court level is only ministerial. They facilitate the availability of infrastructural support including maintenance of case records. The date for the next hearing is decided by the POs themselves who usually take into account the parties’ convenience in this regard. The POs do not announce their awards in the court premises; but are obliged to send them to the appropriate government (Sec. 15), which is obliged to publish it in its official gazette [Sec. 17(1)]. An award of the PO when published “shall be final and shall not be called in question by any court in any manner whatsoever [Sec. 17(2)]. However, it is possible to appeal against an award to the Supreme Court under Article 136 of the Constitution after obtaining Special Leave to Appeal if allowed by the Supreme Court. Also, the High Courts have been given powers under Article 226 of the Constitution to issue writs, including against awards of the adjudicatory bodies under the IDA. Both these jurisdictions, however, are only limited. Nevertheless, in actual practice, large scale use of these jurisdictions is noticeable. III. TRENDS IN INDUSTRIAL DISPUTES AND THEIR SETTLEMENT This section examines the trends in disputes processing, success rate of the dispute settlement machinery in resolving industrial disputes, governments’ intervention in these disputes, and the cases being processed by the adjudicatory bodies - in the form of disputes and applications under the IDA -- and thus gauges the trends in some aspects of industrial conflict dynamics. Adjudicators and lawyers may not attach much importance to this analysis and may not go into the complex set of factors of historical or contemporary significance, which influence the shape of the dispute. But through such analysis, we may grasp a reasonable sensitivity of the industrial conflict process, which can help adjudicators in developing useful perspectives in handling specific interest-related issues. This also helps us, among others, to re-examine the suitability of the structural framework of our disputes resolution model as reflected through its operational manifestations, as also to draw some implications for future trends in this regard. The available macro industrial dispute-data reveals that there is a downward trend since early eighties in the number of disputes and workers involved. However, the duration of conflicts have become longer, and the number of workers involved per dispute has gone up, which indicates a higher intensity of conflict (Verma, 1994: 93; Sengupta, 1993:4). Also, by and large, the man days lost due to lockouts have been higher than those due to strikes in most of the recent years. Workers are increasingly realizing that during a strike they not only lose their wages but also that “going on strike does not bring much pressure on the employers” (Shrouti and Nandkumar, 1994: 32). Since the decision of the Supreme Court in Bank of India vs. T.S. Kelawala and Others [1990 IILL, J 39(SC)] the judiciary has indirectly conveyed a message that strikes are undesirable instrumentalities, and workers have to lose their wages for resorting to these even if they are justified in doing so. Workers have, however, begun adopting the strategy of go-slow. But in most such situations the management
responds “by declaring a lockout instead of going into a negotiation process” (ibid.). Since the 1980s and 1990s, a new trend is developing in the high profile industrial belt of Bombay-Thane-Pune region. A large number of multinational corporations have set up manufacturing and service industries in this region. Employers there as also elsewhere are raising demands on workmen for reduction, in workforce, increase in production and productivity, ceiling on dearness allowance, change in technology as a management prerogative, multi-trade jobs, increase in working hours, total flexibility, etc. It is also noticeable that the above events are symptoms of declining collective labour power. The emergence of enterprise unions, de-unionization strategies of employers, employment of contract and casual labour and the use of human resource management devices, will affect the disputing potential and attitude of the labour class. As is known, India has been following the policy of liberalization since the 1980s by way of broadbanding, de-licensing and liberal approval of foreign collaboration agreements, which was followed by a more direct opening up of the economy through the July 1991 de-regulatory policy. This has put competitive pressures on employers; and that led to the above mentioned trends. It is being argued that there is a general shift in the balance of power in favour of the employers, which has adversely affected the union power and the propensity of the workers to strike (Sengupta, 1993: 6). But can we read a greater satisfaction on the part of labour in these trends? Surely, it will be too simplistic to draw that conclusion; we need disaggregated data of industrial units to know the real dynamics of dispute processes and disputing experiences. Unfortunately, such data are not available, and can be obtained only by conducting first-hand qualitative research. It is important that we study not only the contents and outcomes of the agreements but more importantly, the processes through which they are reached. Some outstanding research has begun to emerge in this regard, though in many cases, at only a semi-disaggregated level (see, for example, Ramaswamy, 1988 and 1984; Bhattacharjee, 1987; Banaji and Hensman, 1990; also see, Saini, 1994a and 1995). Keeping in view the socio-political context of our economic structuring and the manner in which labour and management have conducted themselves or are likely to behave, the covert incidence of unrest and conflict in the near future is likely to rise. Also, uninterrupted production will be a sine qua non for industries to sustain themselves as per the exigencies of competitiveness. Workers’ satisfaction cannot be measured through the aggregate disputes data alone, but requires delineation and grasping of disputing profile of individual cases. Despite the acceptance by the state, of the virtues of voluntary settlements and of the reported militancy of unions, collective bargaining and mutual settlements are not the primary methods of industrial disputes settlement in India. Table 1 reveals that barring in few years, only about onefourth disputes are resolved by this method. Since 1987, this percentage has considerably declined in many years. Also, these settlements include data on public sector industries; scholars have doubted whether cases relating to “public sector can actually be treated as real and genuine instances of collective bargaining”, and have argued that we need to distinguish between “signed contract” and collective bargaining (Sengupta, 1993:6). Another trend discernible from Table 1 is that especially since 1988, the percentage of disputant workers resuming work voluntarily (i.e. by abandoning their demands) has been fluctuating between a whopping 41.9 to 51.3, which was earlier roughly around 25 to 33 per cent. This also can be taken as an indication of falling collective labour power. The
theory is getting support from data in Table 2 also, which gives information on the performance of the dispute settlement machinery for the period 1970 to 1993. It shows that the percentage of failure in this regard since 1989 has gone up in the range of 49.4 to 54.2, and that of success is falling to merely around 20 or much less. The position of pendency of disputes including individual Section 2-A (of IDA) disputes, applications for approval or permission (u/s 33 of the IDA) and computation applications (u/s 33C (2) of the IDA) has reached menacing proportions. Table 4 taken from Tiwari and Ghosh’s (1991) paper, shows that in June 1989 the total pendency before adjudicatory forums in the country was 3, 38,047, which today must be much higher. The figure was only 1, 82,287 six months before. Some highly industrialized states like Gujarat and Maharashtra contribute about one-third each, to the national total. Very high incidence of pendency is also noticeable in Madhya Pradesh and Delhi. It is noticeable from Table 3 that the highest number of adjudicatory bodies (Labour Courts, Industrial Tribunals and Labour Court-cum-Industrial Tribunals) is in Maharashtra followed by Gujarat and then Madhya Pradesh and Uttar Pradesh. One reason for the higher number of disputes, applications and adjudicatory bodies in Maharashtra and Gujarat is the application of the Bombay Industrial Relations Act 1946 (BIRA) in these two states in certain industries. Under the BIRA there is a provision for direct reference in case of individual disputes. The position of industrial disputes referred to the IR machinery, failure of conciliation and reference for adjudication and conciliation during 1992 are presented in Table 5. The table shows the virtual extinction of arbitration as a dispute settlement method. It now exists only in Maharashtra, where eight disputes were referred to arbitration compared to 2512 for adjudication in 1992. In Rajasthan, this number is only one and nil in the remaining other states. It is an important question for discussion as to how the structuring of our labour court model, as enshrined in the IDA, is responsible for this state of affairs. A study of 44 arbitration awards in Bombay delivered during 1988-92 reports that low preference for arbitration is attributable to parties finding adjudication as readily available (and with appeal provisions) and adjudication to be the favoured state policy (Rarikar, 1994: 24). Others have argued that the juridified industrial relations atmosphere and the general distrust of parties, especially workmen, in, arbitrators are important factors that inhibit arbitration (Saini, 1992). Table 6 presents the number of disputes and applications instituted, disposed off by, and pendency before, the Central Government Industrial Tribunal-cum-Labour Courts. It shows that the rate of disposal in various years has not increased significantly over the years. But pendencies before these bodies are rising at an alarming rate. This requires a serious consideration of the situation. Table 7 presents an illustration of the usual case profiles before tribunals in a large number of cases. This helps illustrate many of the formulations made by Baxi (1994) and Saini (1994a and 1995) in a later part of the paper. In sum, it should be observed that there is a quantum jump in the arrear of cases pending adjudication. Part of it can be attributable to the decisions of Ram Avtar Sharma v. State of Haryana and Others (1985 Lab.IC 1001) and others delivered on the same pattern, which have severely curbed the government’s power to refuse reference in individual termination cases. Also noticeable are increasing abandonment of disputes by workmen, falling rates of settlements and stagnation in the rate of disposal of cases by the central adjudicatoty bodies. This aggregate profile of industrial
disputes will also help support our formulations and observations in later sections. IV. THE WORKING OF THE CONCILIATION SYSTEM: THE INVISIBLE STAGE IN THE LABOUR COURT MODEL Though the hallmark of the IDA is the adjudication system which involves dispute resolution by quasi-judicial authorities, the initial processing of the industrial disputes in most cases is done by the conciliation system, both in interests and rights disputes. An analysis of the working of the IDA reveals that the conciliation system is intimately intertwined with the adjudication system. Mostly, the genesis of the government’s reference power also is locatable in the conciliation proceedings. It would not be incorrect to suggest that the conciliation system in India works in the shadow of the tribunal system. The ineffectiveness of the conciliation machinery puts greater workload on the labour courts and tribunals. Therefore, any discourse on labour court reforms in India must also simultaneously take stock of the working of the conciliation system, and must look in the two systems the common running threads. The IDA assigns to the conciliation machinery the role of “mediating” in and promoting the settlement of industrial disputes. The IDA enjoins the conciliation officer (CO) to “without delay investigate the dispute and all matters affecting the merits and right settlement thereof and do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute” [Section 12(2)]. The CO is obliged to conclude the conciliation proceedings within 14 days of their commencement; however, subject to the approval of the CO, the time for the submission of the report may be agreed upon in writing by all the parties to the dispute. If a CO is able to effect a settlement in the course of conciliation proceedings, he is obliged to send a report to this effect to the appropriate government together with the memorandum of settlement signed by the parties to the dispute [Section 12(3)]. However, if he fails to do so, he sends a failure report, in which he is expected to state the steps taken by him for ascertaining the facts and circumstances together with the full statement of such facts and circumstances and the reasons for the failure of the conciliation. Mostly, the failure report guides the appropriate government in its decision to refer a dispute for adjudication, though the government may act independent of it. The failure report is an important connecting link between the conciliation system and the adjudication system. That is why, the conciliation process can be referred to as “the invisible stage of adjudication” (Dickens, et al., 1985). The structure of the IDA model is such, that a fuller understanding of it must comprehensively examine deep interconnections between the conciliation system and the adjudication system. Researches have revealed that the latter by its existence and working exerts covert influence on the working of the former. Indian labour researchers have mostly attempted to locate the factors which explain the failure of conciliation through aggregate data analysis (see, for example, Patil, 1977; Murti, et al., 1986; Kumar, 1966). Some studies exhort the disputant parties to be “determined to abide by the law” if they want to promote industrial peace (Kher, 1985: 99). Disputes-focused research of conciliation processes have been conducted rarely. However, Ramaswamy (1984) has made pioneering efforts in this sphere by studying two major disputes involving large-sized concerns. A recent study done by Saini (1992b, 1993) is also a qualitative explanation of conciliation processes and their outcome, in relation to collectively-espoused disputes in private sector industries. Intriguingly, scholars in India have mostly failed to distinguish between conciliation in interests disputes and in rights disputes. This is also the case with the disputes statistics presented by the Labour Ministry of the Government of India, as also of the thinking of the
labour bureaucrats. Saini’s (1993) study finds the average time taken in conciliating a collective demands dispute to be 51 days. The average number of meetings called is 6.4 during which the average attendance of the management is 3.6 (53.1%) and the average attendance of workmen is 6.1 (95.5%). What explains the big gap between the statutory time limit for concluding conciliation proceedings and the actual time taken for doing so? Saini has tried to distinguish between the perceptions and realities in this regard. The conciliation officers interviewed in his research did not assign heavy workload on them as, a possible reason of delay in conciliation. Rather they perceived the delay mostly due to the lack of trust between the parties; rigid attitude of the employers; paternalist and egoist managements; and the self-interest of union leaders. The most usual method adopted by managements to cause delays were: non appearances, seeking of adjournments, or sending representatives without adequate authority or status. Delaying of conciliation proceedings was also noticed as a strategy to put pressure on the workmen to relent at the negotiation table. The delay in conciliation weakens the bargaining position of the workers, who are usually a weaker side in industrial relations. Managements were found to be delaying conciliation proceedings either by developing understanding with the conciliation machinery or due to its image of a toothless tiger (i.e. a body incapable of enforcing any sanctions for not taking it [conciliation] seriously.) This research also articulates and reports cases where the conciliation machinery became an agency to carry out the orders of a partisan political executive. As is known, managements often engage retainers who are their labour law and industrial relations consultants. Being professionals, they too contribute to the delay syndrome. These consultants have been used by managements to carry out their objectives, which may involve settling the dispute at conciliation or delaying it so as to weaken the workers’ cause, suppressing the dispute through legal wrangling, or sometimes even eliminating the conflict altogether by the use of unfair labour practices. Often labour-management disputes are considered as analogous to “family disputes” (Nath, 1995:181). This reasoning highlights the need for minimizing the role of outsiders including professionals in industrial disputes resolution. Many a time, managements use them to seek advice in giving legal forms to the unfair labour practices, which they may resort to, while handling industrial conflict. One of Saini’s (1993:239) respondents admitted to such a use of these retainers when he observed as follows: “Our consultant decides the course of action. We follow whatever is advised by him including the advice not to attend the conciliation meetings as far as possible. He suggested to us the way to destroy the union and it worked.” Such strategies were found to be practised more in case of small and medium sized enterprise. However, the relative power position of the parties and its contextualization in the conciliationadjudication model of the IDA continues to be a determining factor in the outcome of conciliation processes. On the basis of reconstructing his sampled disputes - with a sample of industries of all sizes -- Saini (1992b) has found that in most cases (56.8 per cent), conciliation failed due to management’s belief that it would be able to weaken or break the union by resorting to unfair labour practices. In another 30 percent cases, conciliation fails due to the rigid attitude of the managements, which they were morally justified to adopt as per their capacity to pay.
Saini’s study projects that there is an inherent weakness in the structural framework of our law of industrial disputes resolution. It has led to “juridification” (Saini, 1991) of industrial relations, and has not strengthened structures essential for promoting collective bargaining as well as arbitration. It also shows that the increasing incidence of arrears of cases before various forums should be viewed in this perspective. In the case of individual termination cases, conciliation proceedings almost always result in failure. It is mostly so because managements are unwilling to reconsider their actions taken as per their notions of indiscipline, which they execute through exercise of managerial prerogatives of hire and fire. Interestingly, “about 90 percent of the Government’s conciliatory intervention and references to labour courts...relate to discharge, dismissal, retrenchment or termination of workers” (Nath, 1995:182). The individual worker’s behaviour at conciliation is a mixed one. While some workers want to settle the cases at this level, whatever be the outcome, others prefer to go to the labour court. The judicial review of this power cannot completely prevent misuse of this power. Singh (1991:8788), a former regional labour commissioner himself, admits that “The CO is... not motivated to make much efforts particularly in cases of dismissals, discharge, termination, etc. The situation in the public sector being worse”. An interesting development took place in 1985 when the Supreme Court decided the case of Ram Avtar Sharma & Others v. The State of Haryana (1985 Lab. I.C. 1001). As per the decision of this case, the appropriate government’s discretionary power not to refer individual industrial disputes relating to termination has been so severely curbed as to have been virtually taken away. Consequently, a large number of such cases which used to be earlier dropped becuase of denial of reference are now coming up before adjudicatory bodies. And, since reference decisions are made after submission of the failure report of the CO, conciliation in such cases tends to become a formality. It is estimated that consequent to the case of Ram Avtar, reference to labour judiciary has shot up “three-fold” (Singh, 1991:86). And since the number of labour courts/tribunals have not increased in that proportion, the pendency has risen to unthinkable levels. The question of effectiveness of conciliation system, especially in the individual cases -- has very complex dimensions. It depends on a host of structural, attitudinal and cultural factors. But the following points require serious consideration: Firstly, one important reason why pendency at the conciliation forum is huge, is the lack of a meaningful grievance settlement authority at the internal level of the industry. In this regard, the IDA was amended in 1982, and Section 9-C was inducted in it to provide for compulsory processing of every individual dispute by an internal grievance settlement committee. Such a committee was to consist of representatives of the workers and the employer. But this section of the IDA has not been brought into force till today. Some people believe that “a grievance system suited to the unit structure and need could neutralize quite a few (individual) disputes at the intial stage” (Tiwari and Ghosh, 1991:95), while others question such an expectation because the “employers and the trade unions are least bothered about its (Section 9X) provisions” (ibid.). Secondly, there is a need to re-examine the status enjoyed by conciliation officers in our dispute resolution system. Despite conferring additional powers on the COs by the 1982 amendment to the IDA, they have not been able to enforce these powers effectively. Managements often find ways and means to see these powers rendered ineffective. This is also attributable to a comparatively low
status which conciliators enjoy in the bureaucratic hierarchy. The competence and skill of the conciliators are also not commensurate with the requirements and exigencies of their duties. There is no regular in-service training for them. Certainly, there is a need for upgrading the status of conciliation officers as also of carving out effective training programmes for them on a regular basis. Thirdly, the institution of conciliation is losing its credibility very fast. The fact that COs are agencies involved in the processing of capital-labour relations itself causes the malaise. The faith of common people in various state institutions including the labour bureaucracy is declining. Therefore, COs themselves are not solely responsible for the lack of faith of workers in them. Until and unless autonomy from the state apparatus is granted to this institution and they are delinked from the influence of government, it is difficult to expect miracles from them. Also, for developing more competent COs, rigorous recruitment and training exercises need to be supplemented by a human resource development approach to the whole question. Fourthly, apart from performing conciliation work, the COs as labour officers are also involved in the enforcement of other labour laws which are very large in number. The complicated labour law framework not only hinders the conciliator’s work but also creates problems for employers for coping with it. There is an urgent need to rationalize and simplify our labour law structure, so that the labour justice system can be made understandable to the common worker and its processes become expedient. Lastly,.we also need to be on the lookout for developing alternative dispute resolution forums. The conciliation and adjudication systems may have to be supplemented by other methods like the Lok Adalats (people’s courts). Many scholars have expressed apprehension about the justness of settlements taking place before this forum (Baxi, 1994; Desai, 1994). Their argument surely carries significant weight but we need to innovate in this sphere on a priority basis. V. THE WORKING OF THE ADJUDICATION SYSTEM In this section we will examine the actual working of the labour court system in India. What were the assumptions on which the structural framework of the IDA was founded and how far in its working the system reflects the realization of those assumptions? Our emphasis shall be not so much on the official thinking and projections of the government; but the basis of our formulations is a critical scrutiny of the range of industrial relations issues as handled by labour researchers. The analysis in this section seeks to locate the objectives of the labour court model, the framework of the adjudicatory bodies, adjudication procedures and approach, and the realization of the objectives of the labour court system with an emphasis on the dynamics of delay in labour adjudication. While attempting to analyse these issues, we have tried to focus on the typical adjudicative-process syndrome as reflected in the working of the labour court system. Objectives The IDA provides in its preamble that the objective of this law was to “make provision for investigation and settlement of industrial disputes” through, among others, labour courts and industrial tribunals. The framers of the IDA expected that these quasi-judicial bodies would
expeditiously resolve industrial disputes without indulging in legal jargon and procedures. They were apprehensive of the potential ‘of the labour court model as enshrined in the IDA to promote legalization of industrial relations, even as the model emphasized the need to strengthen bilateral arrangements and negotiations for lasting solutions. The statement of aims and objects of the IDA itself acknowledges: “Industrial peace will be most enduring where it is founded on voluntary settlements”. To safeguard against the danger of legalization potential of the labour court model, they sought to provide certain safeguards. An intensive reading of the structural framework of the IDA projects that this law was expected to provide a channel that would ensure expedient, less expensive, less formal and more accessible administration of industrial justice (Saini, 1994a:23). Similar objectives are projected by the industrial tribunal adjudication model of England, which provides, among others, mainly for adjudication of individual termination cases (Dickens et al., 1985). It was also expected to-specially the tribunals under this model--imbibe the social policy of the state in industrial relations in carrying out their duties of interest-disputes adjudication. Despite apprehensions of inhibiting voluntary structures, the Indian judiciary recognized the adjudication system as envisaged in the IDA as an instrument of promoting “collective bargaining” (Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, 19581 LL J 500 (SC), as also social justice, amity and good relations. The adjudication system has often been described as a catalyst to reform the disequilibrium in the power position of labour and capital. The Indian planning has emphasized harmony as a social value and the labour court model as an instrument of promoting it. The Supreme Court, however, clarified that it should be on a “fair and just basis” [Crown Aluminium Works v. Their Workmen, 1958 I LLJ, 1 (SC)]. The critics of the collective bargaining model vehemently defended the labour court model. They argued that far from weakening the collective labour power, it would “give impetus to trade union movement” (ILC, 152:6). It was also argued that the collective bargaining model would promote “the law of the jungle” (Johri, 1989:15). Thus the IDA was looked upon as a social engineering instrument. The Act was so structured that the tribunals and labour courts were expected to provide effective accessibility to disputant parties as compared to civil courts. Also, in doing industrial justice administration they were expected to combine expertise in industrial relations with the principles of justice administration. These were the basic postulates on which the edifice of the IDA was laid. The freedom of procedures and approach of the labour courts and tribunals were the key aspects of realizing the projected objectives of this law. Constitution of the Adjudicatory Bodies The IDA envisages two sets of “appropriate governments” to administer the adjudication model imbibed in it, i.e. the central government and the state governments. These governments were given the power to appoint labour courts and industrial tribunals in their respective jurisdictions. By and large, labour courts have been given the power to adjudicate any matter contained in the Second Schedule to the Act. This schedule mainly includes rights issues such as discharge, dismissal, interpretation of standing orders, etc. The tribunals on the other hand have the power to adjudicate any matter whether contained in the Second Schedule or the Third Schedule. Broadly,
the Third Schedule contains interest matters such as wages, compensatory allowances, bonus, rationalization, etc. Apart from deciding the matter contained in the Second Schedule, the labour courts have also been given the power to deal with computation proceedings under Section 33C(2) of the IDA. The Act provides that a tribunal and a labour court shall consist of one person only. A person is qualified to be appointed as the presiding officer of a tribunal if: (i) he (or she) is or has been a judge of a High Court; or (ii) he (or she) has for a period of not less than three years, been a district judge or additional district judge. A person is not qualified for appointment as the presiding officer of a labour court unless: (i) he (or she) is or has been a judge of a High Court; or (ii) he (or she) has, for a period of not less than three years been a district judge or an additional district judge; or (iii) he (or she) has held any judicial office in India for not less than seven years; or (iv) he (or she) has been the presiding officer of a labour court constituted under any provincial or state Act for not less than five years. The adjudicatory bodies under the IDA have been conferred the same powers as are vested in a civil court under the Civil Procedure Code, 1908 (CPC), when trying a suit in respect of : enforcing the attendance of any person and examining him or her on oath; compelling the production of documents and material objects; and issuing commissions for examination of witnesses and other matters as may be prescribed. These bodies have also been given full powers to determine and grant in their discretion, cost of, and incidental to, any proceedings before them. But they have not been conferred any power to enforce their own awards. In case any award remains unimplemented, the labour department concerned can file prosecution proceedings against any person responsible for it in the court of the Chief Judicial Magistrate. Even as the adjudicatory bodies are not courts, a substantial part of their work was expected to be of judicial nature. They were conferred wider powers than those of an ordinary court. The IDA provided for the appointment of assessors by these bodies in case thought necessary by the appropriate government. The qualification for assessors was not prescribed nor was their status concretely identified. However, the understanding was that they could be economists, social scientists, social workers management experts or others well-versed with problems of industrial relations. In England, the lay members, representing both sides of industry, sit on the panel of the tribunal along with an independent chairperson. The lay members there are also expected to be persons having qualifications similar to those envisaged for assessors under the IDA. An amendment made in the IDA in 1956 conferred powers on “a court, labour court, tribunal or national tribunal if it thinks fit to appoint one or more persons having special knowledge of the matter under consideration as assessor or assessors to advise it in proceedings before it.” To ensure that the IDA does not promote legalization of industrial relations issues, it was provided that “no party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings”. Before adjudicatory bodies also, parties’ representation through lawyers was discouraged. Lawyers can be allowed to represent parties before these bodies with the consent of the other parties to the proceedings and with the leave of the authority concerned. The IDA also provides considerable freedom to these bodies in handling the disputes. Instead of prescribing any rigid procedures, they are allowed to follow such procedure as the authority may think fit.
It is discernible from the above, that the formalities of the court-like nature were expected to be minimized by the adjudicatory bodies envisaged under the Act. This was intended to show sensitivity to the complexities of industrial relations and to promote greater accessibility of these forums to the disputant parties. So as to prove worthy of emulating these projections, labour courts and tribunals were to demonstrate themselves as institutions capable of substituting the voluntary procedures on failure of negotiations so as to be relied on by the disputant parties as effective aids to industrial disputes resolution (Saini, 1994a:26). The realization of these objectives necessarily postulates that labour courts and tribunals are more accessible and competent to perform such a role. If they disseminate messages that they adopt slow and cumbersome procedures, disputant parties cannot perceive them as helpful. It should be interesting for us to know as to how far these expectations from these bodies are operationally efficacious. Procedures and approach of the Adjudicatory Bodies It is noticeable that labour courts and tribunals are not ordinary courts but are an instance of “a specialist, modern form of court” (Abel-Smith and Stevens, 1968:224). The most conspicuous peculiarity of these is the manner in which they are expected to conduct themselves in performing their work. We notice their peculiar composition like associating assessors (area experts), and performing a proactive role in determining facts and locating solutions. They need not confine to the procedural specifications of the adversary culture. Also, they are expected to demonstrate apart from legal knowledge -- expertise or special knowledge of complex issues in capital labour relations. The approach and method of these bodies in handling industrial conflict is bound to be influenced by the knowledge of industrial relations and workplace relations. This will help them to evolve more appropriate procedures to perform their role and will also shape their manner of conducting hearings and adopting appropriate approach in enquiring into and resolving disputes. The wide powers given to the adjudicator to follow his own procedure were intended towards “mitigating the rigours of the technicalities of the procedural law for achieving expeditious investigation and settlement of industrial disputes” (Malhotra II, 1985:715). The adjudicatory bodies need not follow the rules of the CPC and the Evidence Act. Nevertheless, their determinations are analogous to those involved in judicial proceedings. As is known, judicial proceedings follow the adversary rather than the inquisitorial approach in determination of disputes. The adjudicatory bodies under the IDA have been conferred powers to “enter the premises occupied by any establishment to which the dispute relates”. But this power is never exercised, talked about or even thought of. Most presiding officers of these bodies are transferees from the civil and criminal courts and are disinclined to move away from the civil court culture and approach. Also, the overload of the tribunal compels the PO to stick to this traditional approach. Various forms that are required to be submitted and declarations to be made, are similar to those used in judicial proceedings, with only change in nomenclature. The hearings are held in public and case after case is called quite like the way ordinary courts function. The adjudicators are never trained in understanding the basic facts of industrial conflict dynamics. The fundamentals of the Anglo-Saxon jurisprudence freely haunt their minds. This traditional procedure has been internalized to such an extent that the adjudicators have ceased to
be aware that they enjoy the freedom to explore expert-assisted solutions in deciding the disputes (Saini, I 994a:28). Minor variations from the civil court approach can be noticed in the labour court procedure. For example, unlike in a civil suit, verification of claim statement (CS), written statement (WS) and the rejoinder are not required in labour adjudication proceedings. Also, issues need not be framed separately and the terms of the reference itself may be taken as the issues. The documents may be allowed to be entertained at any stage of the adjudication proceedings. These bodies are expected to be more liberal in the matter of proving of documents as well. And, the parties need not give the list of witnesses before adducing evidence. It is important to ask whether this much relaxation in the procedure can lead to expedient and informal administration of industrial justice. Saini’s (1994a) study shows that POs have not involved themselves in enquiring into disputes by any other method except that of the civil court approach. It shows that virtually none of the safeguards envisaged by the framers of the IDA have been put into operation by the adjudicators, except to a certain extent, the proving of documents. The rationale of adjudicators’ proactive approach is parties’ fuller participation in the disputes processing. Saini’s study shows that even on the request of the workers for a more involving role of the presiding officer, he (or she) was not only disinclined to do so but ridiculed the workers for making such a request. The keen concern of most adjudicators is impersonal adjudication, which depicts their interest-neutrality of the civil court type. They are uninterested to fill the gap in the power position of the parties. As per this procedure many important questions remain unasked especially because often the poorly represented party - more often the workmen - does not know its importance to the juridified industrial relations equations. Roy, a veteran trade union leader and one of Saini’s respondents, made an important observation: When a dispute pending adjudication is settled, the PO is too ready to pass a settlement award without going into its contents. I agree that by and large he (or she) should not interfere in mutually-arrived-at settlements. But if workers are coerced into settlements due to various reasons, or a settlement is manoeuvred to outwit a non-favoured union, can it be said that he (or she) is performing his (or her) duty of doing justice? After all, it is their duty to ensure that the settlement is just and fair. Likewise, when disputes are abandoned by a disinterested or corrupt outside workers’ leader, the PO is never aware of his (or her) this duty as conferred by the IDA and mechanically dismisses them like civil courts do, without knowing or caring to know the fact that abandonments are frauds on hapless workmen who cannot understand the technicalities of law. What kind of help do they render to the wretched worker? The procedure adopted by adjudicators thus is neither proactive nor inquisitorial. It reflects the adversary cultural milieu of the labour court system. The structural framework of the IDA is so designed as to expect a grand scale administration of industrial justice--in relation to interests as well as rights--from labour adjudicators. They have found this to be rather too onerous an obligation to discharge. Not only do they suffer from overload, they are also not trained to meet this expectation. As we noted earlier, there are restrictions under the IDA on appearance of lawyers before these bodies. But the adjudication procedures are too juridical. It is beyond the competence of workers or internal union leaders and even insider management representatives to effectively
participate in the adjudicative process. That is why, outsider union professionals, management consultants and labour lawyers are invited to help in conducting the proceedings before these forums. This diverts the attention of union leaders from union organization to the role of a pleader requiring mammoth professional skills.. In many cases the union leaders are seen to have become merely labour law practitioners in labour courts in return of money. Likewise, the presence of a large number of management consultants and labour lawyers in dispute processes has become a flourishing industry. This, in effect, leads to converting important socio-economic issues of industrial conflict dynamics into legal questions. The increasing resort to the adversary approach also leads to impersonal industrial relations and creates a greater “social distance” between the adjudicators and the disputant parties (Ietswaart, 1981-82:625). Saini’s (1994a) study reveals that 90 percent disputes at the conciliation stage and 86 percent at the tribunal stage involved representation of workmen by outsider leaders. Also, 45 percent of management representatives at the conciliation stage and 97 percent at the tribunal stage were outsider management consultants or practicing labour lawyers. What factors have contributed to such a blurring of the intended procedure and approach of the adjudicators as envisaged by the IDA. Also, who gains from such a dispensation? As has been argued by Saini (ibid.), the contemporary industrial justice dispensation takes place on a reverse-value hypothesis, the whole labour court atmosphere being surcharged with “juridification” (Saini, 1991; see also, Davies and Friedland, 1993; and Clark and Weddernburn, 1983) of industrial relations. And the gainers in this dispensation are those parties who can contain the disputing potential of their adversaries. What explains the fact that 90 percent of the disputant workmen in Saini’s study of collective disputes are coming before the tribunal for the first time. He pertinently observes: Tribunal performance gets reduced or exacerbated, depending upon, inter alia, the attitude and approach of the parties towards the disputes, their expectations, power position, endurance, disputing decisions and motivations... Conversely, the perceptions of tribunal procedure, approach and performance will determine the type of parties who come before it...To know the fact that the IDA exists to provide a machinery to settle disputes is not enough; it is also important that disputant parties perceive the tribunal system and procedure as a useful device in resolving industrial disputes at reasonable costs. This observation leads us to conclude that a disputant party’s decision to refrain from activating the jurisdiction of labour court does not necessarily reflect an end of the dispute. It merely shows dispute suppression due to an adverse image of the labour court system. In this regard, Trubek ‘ (1980-81:744) rightly observes: We need to get away from the idea that the social role of courts and law can be explained exclusively by looking at the disputes that do arise and by studying what courts do and do not do in these situations. We need as well to look at the disputes that are not there and to understand how court dispute processing options, and legal doctrine itself affect both the emergence and suppression of disputes. A still more holistic-explanation of dispute suppression by the labour court procedure and approach will be clear from the discussion in the subsequent sections.
Objectives of the Labour Court System: Projects and realities From the foregoing it is clear that the performance of the labour court system may contribute to dispute avoidance, resolution or even abandonment. The parties may activate labour courts if they perceive them as forums dispensing justice. If not, they may resort to other options including settling at less than just consideration or abandoning them in disgust. We shall try to understand each one of the four projected objectives of the labour court system in this background. 1. Greater accessibility Better accessibility to a system depends upon many factors like the knowledge that a forum exists where dispute processing could be sought; perception that there are reasonable chances of success by activating that forum; bearable costs in processing of the dispute in terms of time and money; closer geographical location of the forum; availability of competent representatives to plead the case of the party concerned; perception that the weaker party (mostly the workmen) will not be victimized for espousing the dispute; and in the context of the IDA getting a successful reference of the dispute. So as to be labelled as accessible, adjudicatory bodies must demonstrate and promote these expectations. In this context, it is interesting to know as to what are the facilitators and barriers for accessibility of the labour court system. From the worker’s point of view, union leaders have played an important role in acquainting the workmen about the existence of this channel. However, obtaining reference has not been very easy. Often, the appropriate government takes reference decisions on extraneous considerations. Our labour court data in an earlier section shows that all states have not established sufficient number of labour courts and tribunals thus affecting accessibility to these forums for workers. On the other hand, states like Maharashtra, Gujarat and Madhya Pradesh have scored well in this regard. The fee charged by union leaders is also modest, which is a facilitator of accessibility. The decision of the Supreme Court in the case of Ram Avtar Sharma v. The State of Haryana and Others (supra.) has greatly limited the discretion of the appropriate government in reference decisions in individual cases, which has been advantageous to workers from the viewpoint of accessibility. In case of collective disputes, however, the labour court system has not been able to give sufficient assurance to the union leaders espousing disputes that they will not be victimized for doing so. A collective disputes study by Saini (1995) shows that in 21 of the 33 cases that he intensively studied, union leaders espousing the dispute were dismissed or suspended under the garb of mostly frivolous charges. In only three of the cases the action was withdrawn by the management. In the remaining 18 cases, the union leaders had to leave the organizations concerned, even though the demand charters submitted by the unions led by these leaders were discussed at some level before the concerned disputes came to an end, which justified espousal of the disputes concerned by them. Interestingly, in two of the 18 cases the workmen could not be reinstated even after the Supreme Court found their dismissal wrongful and gave decisions in their favour. The employers concerned in these cases indulged in unfair labour practices (ULPs) to see that the decrees of reinstatement remain unimplemented (See Saini, 1991a:365-382 for details of these ULPs). We have also noted in an earlier part of this section that contrary to the projections of the IDA labour law, professionals reign in the labour court working. These professionals too have contributed to the delay in proceedings and also in making the proceedings formal. Further, since tribunals have no power to enforce their own awards, poor enforcement has also exacerbated the decay of tribunal’s image in the eyes of
workmen as accessible forums of justice. It is thus noticeable that the accessibility of labour courts and tribunals is much diluted by the procedure and approach which they follow and the potentiality they project as industrial justice dispensation forums. On the one hand our model envisages a legal road to industrial justice, but on the other the access of the deprived to law-administering and interpreting institutions is, in effect, curbed considerably. For example, 40 percent of the collective disputes were found to be abandoned (Saini, 1995), but a dismissed-in-default award explains nothing about what circumstances led to such a finale. And, on such abandonments, it is reported in the disputes statistics that the incidence of disputes has lessened and peace has been promoted; but the important question to ask is, did it happen despite an accessible system of justice. The answer mostly is “no”. Promoting the accessibility to the industrial justice forums in reality, therefore, is inhibited by various facets of their working and requires a holistic reconsideration of issues. 2. Informality One of the aims of the IDA was to prevent promotion of formal and legalistic approach pervading the determination of questions relating to industrial equity. It is impossible to banish complete formality in any quasi-judicial exercise of power. But how much of it can be achieved depends upon, among others, the structural framework of the law in question and attitudes, goals and power-positions of the actors who comprise the dispute resolution system. In simple words, an industrial adjudication process can be described as informal if all disputant parties concerned feel comfortable while participating in it, and are able to present their own case with the expectation of a reasonable degree of success. Such an expectation is considered natural on the part of both parties--labour and management--for they experience continuing relations of conflict and accommodation. The informal approach would require minimization of court-like formalities. If it is not possible to eschew formalism completely, it is important to ask what degree of informality is achievable. Atkinson (1982:86) argues that’ we may perceive a situation as formal when the more interactional details are different from conversational way of talking. As per this notion of formalism, the adjudicator must place reliance on inquisitorial approach in proceeding with the dispute. Of course he must simultaneously adhere to the standard requirements of quasi-judicial procedure. The objective of the IDA was to “make provision for investigation and settlement of industrial disputes” through, among others, labour courts and industrial tribunals. We have earlier noted the procedural and other facilitative freedom that was conferred on these bodies for performing their work. It Was intended, inter alia, to produce industrial justice without resorting to formalism. Formal and legalistic determinations promote either dichotomization of issues; are negative in character; and “frequently discourage further enquiry” (Abel, 1973:224). Thus it contradicts the notion of cooperative contribution. To achieve informality it is necessary that the adjudicator minimizes the use of legal jargon and promotes relaxed hearings which must also be so perceived by the disputants. However, the actual experience in this regard is contrary to these expectations (Saini, 1993a). Even though the adjudicators under the IDA are not required to wear a judge’s dress, the presence of a large number of lawyers in black coat in and around these forums promotes formalism. Despite the restrictions imposed by the IDA on appearance of representatives, lawyers
and union leaders have compromised for a peaceful co-existence in the labour court structure, both deciding not to raise propriety questions about each other’s presence. A large number of union leaders have become pleaders and have converted themselves into-”brief--case union leaders” (Saini: 1995a), For example, one union federation in Faridabad industrial belt has I 1 factions; each union leader heading these factions is running his labour law practice from a separate office (ibid). All these realities lead to strengthening the formalistic procedures. Informal dispute processing also postulates that parties understand the proceedings. But labour court procedures have become completely adversary and involve case citation on technical points. While legal terminology may sometimes be necessary for conveying the precise meaning of concepts, its frequent use makes it difficult for the parties to understand and participate in the proceedings. In many countries (the USA, Canada, Australia, for example) there is a growing move away from excessive legal jargon. Since industrial relations realities change fast, it is believed that they should not be subjected to rigid legalistic channels. Even in case of the processing of individual disputes, a case is made out that their status should be raised to those of the collective ones for their resolution (Clark and Wedderburn, 1983; Dickens et al., 1985; Ietswaart 1981-82). This thinking has advocated the abolition of labour court system even in disputes such as those related to termination, and wants these issues to be decided like the way collective interest issues are settled. It is also believed that formalization of disputes structures dilutes the law-creating potentialities of the parties, and ultimately leads to “jurisdiction” (Saini, 1991; Clark and Wedderburn, 1983) of industrial relations. However, in the post-Thatcherism era, this thinking in the U.K. is giving way to greater legislative and judicial intervention in industrial relations. Despite the clearly expressed projections of the IDA and the well acknowledged virtues of informal procedures of industrial conflict processing, the actual working of the labour court model is totally antithetical to this thinking. It is noticeable that labour court proceedings are not jargon-free, and they treat industrial relations issues as legal questions. We noted in an earlier section that adjudicators are disinclined to take on the role of investigating the disputes and have not contributed to innovation of procedures. A variety of factors contribute to this reality. It is not just that the tribunal environment is structured to produce this outcome. The IDA provides that the awards of adjudicators shall be final and non appealable to higher judicial forums. But Article 226 and 136 of the Constitution provide for writs and special leave to appeal respectively, against such adjudicatory bodies. Even though, these remedies were not supposed to be available as a matter of course, it is well known that they are invoked in too routine a manner. Under the overbearing influence of higher judiciary these bodies continue to remain “judicialized and legalized” (Patel, 1994:135). Baxi (1994:55) makes a pertinent observation in this regard: “Some of our judges are very hungry of jurisdiction... particularly under Article 136 of the Constitution... It is ironical that they are not professional enough. They must respect autonomous functioning of other institutions and legal agencies. Labour adjudication is a task given to labour judiciary; unless they have done it really badly or it is violative of the Constitution, judges from the higher judiciary should not interfere...”. And, when higher courts expect the technical correctness of an award to be tested at the touchstone of objectivity, evolved at judicial forums, it is impossible to ensure informality in industrial dispute processing. [See the judgement by Mr. Justice V.S. Deshpande (as he then was) in the case of Metal Fabricators (India) v. D.D. Gupta (1975 Lab. IC 1707), for such an attitude of the judiciary]. The expectation that awards
should be consistent, will prevent even a semblance of desire on the part of adjudicators to be innovative. The legally-trained PO, labour lawyers, management strategies, union leaders’ values and goals, the requirements of appeal and writ provisions, all help in relegating the informal approach to the background. In such a scenario, it would be unreasonable to blame either the judges, management consultants or union leaders for formalizing the industrial disputes processing. We ought to make a structural analysis of our labour court model. 3. The specialist’s role of Labour Courts and Tribunals As may be discernible from the foregoing analysis, the adjudicatory bodies envisaged by the IDA were conceived as special-purpose quasi-judicial bodies. They were to inquire into and resolve not just ordinary differences and disputes, but were assigned the role of expert bodies. That was why, the provision was made in the IDA for appointment of two assessors to give expert assistance to them. Especially in deciding interest questions is involved writing or implying new stipulations in the employment contract -- a role quite distinct from that involved in handling rights disputes. The attitude of neutrality and formalness on the part of the adjudicator runs contrary to the specialist’s role of a tribunal. As specialists, they were intended to take stock of the hard work-realities and parties’ strengths and susceptibilities. Desai J. (1994: 117) rightly remarks that a labour court judge “must be a social scientist”. This would require adjudicators to indulge in sustained participation and questioning. On the contrary, a civil court approach of neutrality on the part of the adjudicator would lead the parties to mould their activities to meet the legal challenge of the disputes. In such a situation, the labour lawyers and union leaders start acquiring and sharpening their respective legal skills. Therefore, the reactive role of an adjudicator is not in consonance with the exigencies of industrial disputes resolution. It is a contradiction in the IDA itself that it does not prescribe for the adjudicators any qualification of expertise in industrial relations. By their training and qualification, judges are professional lawyers and are “not trained to make judgements outside the field of law” (Hanami, 1981:500). In the U.K. industrial tribunals deal with basically questions relating to, among others, individual employment rights. Still, the tribunals are expected to possess jurisdictional specialization and also take assistance of what they call lay-members of industrial tribunals (who form a part of the panel), who are industrial relations specialists. This should be all the more necessary in the Indian situation where adjudicators have been given a major role in resolving collective and interest disputes. It is well known that the assessors are appointed neither by the appropriate governments nor by the adjudicatory bodies themselves. They treat industrial relations questions in the way issues are treated by civil courts because they lack knowledge of the complexity of capital-labour relations. This strikes at the very basis of expertness. It would be useful to have industrial relations experts on the panel of labour courts and industrial tribunals, who could focus more on the sensitiveness of industrial relations rather than the black letter of the law. Experts’ appointment was perhaps envisaged in the IDA to be followed as a rule and not by way of an exception. By their training, industrial adjudicators are not used to make judgements outside the field of law. That is why, in western countries like Germany and France where specialized courts have been established, nonprofessionals representing the disputant parties take part in dispute resolution. They exert considerable influence in judgements through their experience and knowledge. As has been observed earlier, the tribunals are disinclined to perform the specialist’s role, but labour
lawyers and union leaders who have become practitioners of labour law in return of fee have developed a vested interest in the perpetuation of the status quo (Saini, 1995a). They have rarely demanded the appointment of assessors for expert determination. When questioned about the nonperformance of this role, a tribunal PO, one of the respondents in Saini’s study (1992c:17) remarked: Do you notice the number of parties standing outside my office? First of all, the tribunal suffers from overload. I have no choice but to follow the usual procedure. If innovations are required we should not be expected to make them. I think in that case the government should think of restructuring of the whole system. Then, also, there is a question, where do you find these experts. Let me tell you one thing very plainly. The worker suspects every outsider except the judge -may be they themselves will object to the appointment of these so-called experts. It is noticeable from the foregoing that we have so worked our labour court model that the assessor specialists envisaged in the IDA did not develop. Because of a general breakdown of social ethos and moral values in the wider socio-political environment, the common people have little faith in bureaucrats and administrative agencies. The working of the labour administration has further exacerbated this belief of the worker. They still have a faith in judges, but not in others. It is because of this lack of faith that the system of industrial arbitration has become a dead letter in India. Our labour court model -- including its pre-adjudicative stage -- works in such a way that the common worker repeatedly perceives frustrating experiences. The environment of lack of faith has a reproducing effect. Like as it is in the case of formalism, the writ and appeal provisions also dilute the specialist’s role of tribunals and reduce the enthusiasm of adjudicators for looking at the problem from new angles. Elaborating on this point, Dickens et al. (1985:211) in a book on the working of English industrial tribunals remark: ...where the right is to appeal to another expert body, although the discretion of the first instance body may be curbed, the degree to which the system displays expertness may be undiminished. When appeal is to the ordinary courts, however, the limitation on the discretion of the lower courts may also be a limitation on the expertness in the system. It is thus noticeable that the problem of expert irrelevance in our present labour court model is the problem of the structuring of the IDA, which seeks to convert important interest questions in capitallabour relations into legal issues. The will to strengthen voluntary structures has dampened because of the development of vested interest groups due to the working of our compulsory adjudication model. 4. Minimizing delay and promoting expeditious disputes resolution The framers of the Rule 81-A of the DIR and the IDA were aware of the need for expediting industrial disputes resolution. One of the key reasons why representation of disputant parties before adjudicators was restricted, was to prevent giving legal complexion to industrial differences, and thus to expedite the dispute resolution processes. Lawyers need more time for presenting cases with detailed opening and closing remarks. Also, prolonging the case might sometimes serve the pecuniary interest of the lawyer in terms of higher fees. The framers also projected that self representation by parties or by outsider non-
lawyer union leaders and employer association representatives would be conducive to promoting expeditious settlements and awards, and would thus help in realizing the projected objectives. It is important to ask, how these projections have actually worked; and if delay takes place, what factors contribute to it? Delay can destroy the faith of the workers in the system, they being the weaker side and more interested in expeditious solutions. Data presented earlier reveal the menacing proportions to which the problem has reached. The IDA was amended in 1982 to provide that the reference order of the appropriate government must state the time within which a labour court or a tribunal or a national tribunal must give its award. And, in case of an industrial dispute connected with an individual workman, the time limit prescribed cannot be more than three months. However, it is common knowledge that there has not been much impact of this provision in terms of reducing delay. The pendency before these forums is increasing by leaps and bounds. Judges of the higher judiciary too have felt concerned at this menacing problem. Some time back, the then Chief Justice of India, Shri E.S. Venkatramaiya wrote to the state governments to draw their attention to inordinate delays in industrial adjudication. He drew their attention to a case which involved more than 10,000 workers and was decided by the Supreme Court in sixteen years after it had been referred to an industrial tribunal. While some scholars of labour law have attempted to locate the delay dimensions in terms of the very structural framework of our labour court model (see, for example, Saini, 1992a), others have focused attention on the wider socio-political environment in which the Indian legal system operates (e.g. see Baxi, 1991, 1994), or on more immediate causes (see, for example, Chandra, 1991; Tiwari, 1991). Saini’s study relates to collective disputes and reveals that the actual average time taken by the tribunal in giving its award is more than three years, even as his respondents consider this time-frame as highly unjustified. Majority of his respondents including management consultants and union leaders consider the justified time limit in collective dispute adjudication to be 3 to 6 months, though majority of practising labour lawyers from amongst his respondents consider a reasonable limit to be between three months and one year. Saini (1995) has also noted the increasing phenomenon of mock-conciliation in collective disputes processing in middle and large-sized organizations and the declining faith of the workers in labour bureaucracy and the conciliation machinery. Taken together with this, the long time taken by the tribunal puts pressure on the workmen to acquiesce into mockconciliation [i.e. symbolic signing of a voluntary settlement by a CO under Section 12(3) of the IDA]. This study has projected that a systematic restructuring of our labour court model on the lines of the recommendations given by the National Commission on Labour (1969) and the Ramanujam Committee (1990) would be an appropriate step towards a more systematic handling of the complex issues in industrial justice administration, including those related to delay. This would ultimately lead to some amount of de-juridification of industrial relations. The labour court model has worked in such a way that the personnel managers and the union leaders of today have become children of the IDA. Despite fleeting manifestations of governments’ concern, no concrete progress has taken place in the restructuring of our labour court model. Another dimension of looking at the problem of delay is to see it as an issue intertwined with the wider crisis of the Indian legal system (Baxi, 1982, 1994). This approach postulates that tinkering here and there-Cannot be expected to work as a magic solution. An incisive understanding of our value choices, attitudinal manifestations and structural arrangements, to systematically develop the notion of delay as a concept and a fuller understanding
of delay would warrant an analysis of the structuring of the justice system in the socio-political fabric of society, including distribution of power in it. We need to re-examine whether adjudication is a healthy way to resolve both interests and rights disputes. Should we think of developing alternative disputes resolution forums so as to lessen the burden on the labour court system? Some amount of delay is bound to remain in any system of industrial justice dispensation. This is so because an enlightened society must consider any instance of “justice hurried as justice buried”. And it must equally be concerned at the slogan “justice delayed is justice denied”. If we look at the problem of mounting arrears of industrial disputes pending before adjudicators and the labour relations policy of the Indian State, it appears that justice dispensation is a low national priority on the State agenda. It has been rightly argued (Baxi, 1991:35) that there is a total lack of concern on the part of all concerned for manpower planning and resource building. Manpower planning of any administrative arrangements and adjudicatory institutions is the first and most fundamental step for bringing about effective justice dispensation. The data presented in earlier sections shows that most States have only few labour courts and tribunals, and this situation has contributed to the mammoth national pendency of labour matters. The Tenth Law of Commission of India headed by Mr. Justice D.A. Desai had strongly argued that we produce a report on manpower planning in our courts in this regard. The number of judges per lakh of population in India is the lowest in the world (Baxi, 1994:52). Any starting point in a systematic discussion on mitigating rigours of delayed justice should thus be a rational judge-people ratio. The facilities which we provide to our judges in justice dispensation are highly inadequate and is a matter of important concern. While the legal technology has kept pace with time in the developed world, it still remains archaic in our country. There is a need for developing fresh perspectives in this regard so as to evolve a more professional justice administration system. Adjudicators too have to demonstrate themselves as good professionals who are accountable for their work. A very important idea on the judicial reforms agenda in India is developing the culture of accountability amongst our judges. But accountability cannot be enforced without creating a facilitative support system for judges to function effectively. In order to expect reasonable standards of creativity from them, we must also provide research services to our judges (Baxi, 1978:68). A survey of working conditions and facilities provided to our labour judges would show that even proper secretarial assistance is not available to them so as to perform their work in a professionally competent manner. To promote professionalism, very carefully-carved-out training packages are required. Our Manpower planning approach should also focus on determining necessary adjudication time in labour matters. We must as well devise ways to curb surplus adjudication time in this regard (Baxi: 1994). But we have not developed any national norms to systematically look at these issues. Any analysis of delayed justice must also focus on the question as to who are the creators of surplus adjudication time and who are the beneficiaries of such practices. Baxi (1991:36) alleges that courts in India have no idea of court management, which remains a “bureaucracy with the registrar”. Badly drafted laws also lead to delays, like the definition of ‘industry’ in the IDA. Also, we have voluminous labour laws in our country running into a number more than one hundred. Attempts at simplification of labour laws have been few and far between. An exception in this regard, of course, is the development of a draft Indian Labour Code by the National Labour Law Association, New Delhi under the chairmanship of Mr. Justice D.A. Desai (NLLA, 1994). The disputing behaviour of litigants in the past also shows that sometimes a stronger party in litigation does not intend a judicial
decision but wishes to see its adversary wear out and see its (adversary’s) nemesis in judicial wrangling and delays. For example, Saini’s (1995) study has shown that labour adjudication system has got so structured that it is used by the powerful actors to see that their adversaries watch their doom in conciliation proceedings and adjudication procedures. Of course, this is a very complex question to locate the immediate cause for this state of affairs, but there is an urgent need to draw a line between litigation and attrition, and to develop measures so as to stop misuse of judicial forums, becoming as instruments of attrition. Adjudicators and judges too have their share of blame in the creation of surplus adjudication time. It is well known that lawyers have endless ingenuity (Wedderburn, 1971:9). They are “traditional elites” (Abel, 1973) and “repeat players” (Munger, 1991:604), and are often seen in indulging in advancing endless arguments. Of course, cooperation between the bench and the bar is an important prerequisite in efficacious justice administration; but judges have not been able to prevent lawyers to raise needlessly long arguments. This happens also because judges themselves have to often practice in higher courts after retirement. Likewise, labour adjudicators perform the role of labour consultants and arbitrators after retirement and therefore, may not want to displease lawyers, their prospective colleagues. Baxi (1994) makes an important point in suggesting that a higher age limit is prescribed for retirement of judges, after which they should not be allowed to practice in any case. Another important point which contributes to delays is the attitude and behaviour of parties’ representatives who usurp a large amount of adjudication time_ Often they help litigants to pursue the goal of attrition of their rivals. This is antithetical to the way professionals ought to behave. It is noticeable that in industrial disputes adjudication, delaying tactics take place mostly at the evidence stage. Saini’s (1992a: 216) study of collective industrial disputes adjudication in Faridabad presents in table 8, among others, the hearings devoted to taking evidence in 15 of the cases that he studied which involved full-blown adjudication. It shows that on an average, 22 hearings were devoted to taking evidence, out of an average number of 37 hearings per dispute, the average time for fixation of next hearing being 36 days. The most important mode through which delays are caused is by granting of adjournments, which are adjuncts of the court-culture. Mostly, they are sought by parties’ representatives. But judgesrelated reasons and the overload also explain the increasing number of adjournments. Saini’s (1992a: 224) study shows, adjournments are obtained not just by practicing lawyers and management consultants, but the share of union representatives in this menace is higher. Table 9 (taken from Saini’s study) shows that the average number of adjournments granted per case to management advocates is 6.25, whereas in case of outsider union leaders pleading workers cases, it is 7.7. These data explode the myth that only the managements take more adjournments. The union leaders who have become pleaders (Saini, 1995a) and are often seen holding a brief-case with them containing case files, many times find their personal interest at cross purpose with that of the worker(s). In fact Saini (1995) argues that the IDA has promoted an undeclared alliance between the state, managements and some outsider union leaders, which results in peaceful coexistence and development of vested interests to the detriment of a fair industrial justice system. VI. POLICY SUGGESTIONS AND RECOMMENDATIONS Dichotomizing interests and rights disputes handling procedures and simplification of labour laws
Conflicts of interests are inevitable in all societies, but they are not insurmountable. As regards labour disputes, even conflicts of rights are mostly relatable to interest questions involving capitallabour relations. No progressive labour justice system can overlook the settlement of collective labour disputes involving interest questions. A contended labour force cannot be expected without the evolution of such a system. Appointment of more labour adjudicators and tinkering in procedures can only lead to short-term benefits or can deal with only the symptoms of the problem. Therefore, the question of labour court administration cannot be segregated from developing a viable and just model of industrial conflict resolution at the macro level. This involves a scientific approach to treating interests and rights issues separately. Associated with this is also, the question of simplification of the complex labour law framework in India, which consists of more than 100 labour laws. Recently, as noted earlier, the National Labour Law Association, New Delhi, has prepared a draft Indian Labour Code, 1994, which has sought to provide an answer to both these fundamental aspects of industrial justice dispensation. On the one hand, it has integrated the major labour laws of India -including simplification of many complex concepts -- on the other, it recommends creation of autonomous multi-member labour relations commissions at the national and state levels to deal with interests and rights matters more appropriately. These labour relations commissions will primarily perform functions consisting of certification of bargaining agents and bargaining councils; determination of the level at which collective bargaining shall be held; mediation of disputes if desired by disputant parties; and adjudication of disputes not settled by any of the above methods. The proposed Code also envisages the establishment of the National Labour Relations Commission, which shall be a purely judicial body with appellate powers over the decisions of the Central and State labour relations commissions. There is provision also for appointment of non-j ud i c i al members on these commissions who shall be experts in social sciences and labour matters. There is a proposal for the setting up of labour courts to decide individual termination matters, which can be activated by the workman concerned directly. The National Labour Relations Commission is to have powers exercisable by the Supreme Court of India under clause 2 of Article 32 of the Constitution. And, the jurisdiction of the high courts over the labour relations commissioners is to be taken away. These contents of the proposed code have taken into account the suggestions of the national Commission on Labour, 1969 and the Ramanujam Committee on Industrial Relations, 1990. Without doubt, the proposed draft is an excellent piece of creativity containing well-considered views of experts in the field, who laboured for nearly four years to prepare this draft. It is suggested that the Central Government should expedite the passage of this code by Parliament on an urgent basis. This will meet the long standing demands for the deregulation of industrial relations as also of creating an appellate forum for reviewing the decisions of adjudicators. Developing bipartite approaches with voluntary arbitration as its adjunct The above-state analysis makes it absolutely necessary that India needs to promote a well-thought, judicious mix of bipartite and tripartite approaches to industrial disputes resolution. The importance of voluntary bipartite settlements needs hardly any emphasis. The IDA also stated the need for it in it’s objectives, even as India has not ratified two very basic ILO conventions in this regard: the
Freedom of Association Convention (No.87) and the Collective Bargaining Convention (No.98) [these were not ratified because the IDA excludes the supervisory and managerial workers from its coverage]. It should be appreciated that any reform in the labour courts system will be largely cosmetic unless adequate emphasis is laid on settling interest as well as rights disputes at the enterprise level. The multiplicity of unions in India has also obstructed the success of collective bargaining processes. We have also not been able to develop a clear policy on redressal of employee grievances through a grievance procedure, which is an essential aspect of developing voluntarism. The Model Grievance Procedure evolved under the Code of Discipline is observed more in its violation. Section 9-C inducted by the 1982 Amendment to. the IDA has not yet been notified by the Central Government -it provides for constitution of Grievance Settlement Authority at the enterprise level, Saini’s (1994b) study on grievance handling practices gives dismal picture about evolution of grievance procedure even in large establishments. Another important adjunct of voluntarism is promotion of voluntary arbitration, which is also emphasized by Recommendation No.92 of the ILO. It is well known that this system is tending to become defunct in India, though the recently arbitrated settlement in the Cement Industry is a silver lining in clouds. Researches have pointed out that questions of promotion of collective bargaining, grievance procedure, voluntary arbitration and workers participation are intertwined (See Saini, 1994b:161; Johri, 1992: 142-48). It is hoped that the appointment of IRCs on the lines recommended in the previous para will help mitigate these obstructions, and will eventually help in developing a more efficacious labour court system. Studying the experience of East Asia regarding labour disputes settlement The newly industrializing countries (NICs) of East Asia have considered efficiency in settlement of labour dispute as one of the priority areas of their economic policies. The results of their efforts are obviously visible to the whole world. It is not a plain story of covert coercion and repression of semiorganized labour. But their labour law system has obtained the required legitimacy in their societal ethos. Surely, lessons can be learnt by studying the social, cultural and economic framework in which the labour disputes resoltition structures are operating there. It is, therefore, recommended that being an Asian country -- though with different imperatives of socio-economic development -- the Indian government should arrange to undertake a comprehensive study of the working of the labour adjudication mechanisms in these countries so as to take help from these in developing comprehensive labour law perspectives, and in improving our own model of dispute resolution through the science of comparative labour law, to the extent feasible. Sending conciliation files to adjudicators Till we are able to create an autonomous national labour relations commission and Central and State labour relations commissions, many areas in the existing framework will require our special attention. Even as the conciliation machinery in India has not succeeded to gain confidence of labour, it must be admitted that the file containing various documents and aspects of the conciliation proceedings
carries very useful data about the dispute concerned e.g. issues at stake, the behaviour and attitude of parties, the propriety of their demands, covert and overt pressures on them, and their susceptibilities. These data can prove very useful for the adjudicator in investigating a dispute through the inquisitorial method. It is therefore suggested that the entire conciliation file including both parts of the failure report of the CO should be forwarded to the labour court and industrial tribunal along with the reference order. This will help dilute legalistic approach to settling industrial disputes. It can be the first step in executing the power of freedom of procedure given to labour adjudicators by the IDA.
Orientation of labour adjudicators and administrators to the law-and-society and sociology of industrial conflict resolution perspectives Industrial justice dispensation is a unique sphere of justice administration. Otto Kahn-Freund, who has made a monumental contribution to the sociology of labour law, insisted that a lawyer could not understand law, let alone be an educated lawyer unless he or she learnt the law in conjunction with other social science disciplines. Justice Brandeis is reported to have said.that “a lawyer who has not studied economics and sociology is very apt to become a public enemy” (Wedderburn, 1983:30). This is truer of labour law where scholars and judges often need to cross disciplinary boundaries to articulate labour justice issues comprehensively. Reports of the First and the Second Labour law Review Committees of the Government of Gujarat have envisaged a continuous training for a period of six months for the new recruits to labour judiciary and also a refresher course for labour court judges and labour officers at the end of every three years. This was with a view to expose them to practical realities of industrial relations, the dynamics of conflict resolution, and the latest development in industrial relations laws. These committees laid down comprehensive programs of training in areas like historical and sociological perspectives on the growth of trade union movement and labour adjudication; sociology of labour relations; industrial safety and occupational diseases; industrial conflict management and wage fixation processes; and welfare, well being and survival. The legal technology in the West has begun to be influenced by social science perspectives of legal questions. Desai (1994) doubts whether many labour adjudicators with exclusive legal training know what a “living wage” is, even as it is the constitutional obligation of the Indian. State which it has to ensure to the working class. The idea is that labour judges comprehend the dynamics of labour-capital relations and how they can recycle their skills and competence in this unique area of adjudication in which they are not experts. The present structure of industrial adjudication does not give adequate emphasis to these qualifications of an adjudicator. It is suggested that the Central Government establishes a special national institute exclusively to train labour judges, labour administrators aryl members of the proposed labour relations commissions on the lines of recommendations made by the labour law review committees that were appointed by the government of Gujarat. It will help in developing the acumen to use the inquisitorial method of dispute processing in the labour mediators and adjudicators. It is, however, important that while devising training and orientation programmes for members of labour courts, members’ independence from government is retained. Till the time such an institute comes up, this task may be assigned to the V.V. Girl National Labour Institute. Systematic manpower planning
It is noticeable that States have been taking ad hoc decisions regarding planning of personnel of labour courts and industrial tribunals. It is suggested that careful planning should be carried out for the expansion of personnel in the labour judiciary. The strength of the labour judiciary should be linked to concepts like pendency, disposal rates, growth and expansion of new industries and related aspects. The manpower planning about labour judiciary should also take care of succession planning as well, so that the process of filling up of vacant positions of labour adjudicators starts much before the positions fall vacant. Better service conditions and career development opportunities The service conditions of industrial adjudicators have an important bearing on their work-performance. There is a strong case for providing better conditions and facilities to labour court judges. The State must consider the expenditure on the administrative and adjudication system as planned expenditure. Keeping in view the recent developments in modern management techniques, there should be built-in career development opportunities for the labour judiciary cadre so that we can dispel the impression that it is hierarchically inferior to civil courts e.g. after rendering service in a labour court for a certain number of years an adjudicator may be entitled to promotion for membership of the proposed Labour Relations Commissions. Such opportunities will help in attracting better talent to this branch of justice administration. It will also help promote specialists in labour matters, both judicial and non-judicial. Creation of a post of Director--Labour Prosecution It is well known that the enforcement of labour law’s-in the small scale sector is poor. Also, compliance of labour court awards especially those relating to reinstatement of dismissed workers in this sector is poor (See e.g. Saini, 1991a). Consequently, honest employers who follow such laws remain in a disadvantageous position. It is suggested that each State Government creates a post of Director--Labour Prosecution. This will make initiation of prosecution proceedings of labour law violation easier and will eventually result in better compliance of awards of labour courts. The structure of this directorate be made participatory so as to ensure better accountability. Streamlining the recruitment and transfer of labour judges It is noticeable that in a large number of cases, the posts of presiding officers remain vacant because of bureaucratic inertia and lackadaisicalness in the matter, and also due to the nonavailability of suitable persons. The working of our adjudication system appears archaic and gives the impression of being ad hoc in terms of planning manpower requirements and number of courts. This attitude makes the position of the working class further vulnerable. This is the single most important factor that hinders expedient justice dispensation. A seminar revealed, for example, that out of 19 industrial courts and 26 labour courts in Maharashtra, nearly half remain without judges (Tiwari and Ghosh, 1991:84). Looking for retired judges - who many times are not even available - shows the attitude of a short term perspective to the issue. By the time they get a grip on the complexities of industrial adjudication, their term expires. Frequent transfers of judges also add to delays. It is suggested that there is an urgent need to streamline the recruitment and transfer system of the labour adjudicators.
Camp Courts An important device that may be used to promote greater accessibility to the labour justice system is the use of touring courts or camp courts, especially in remote areas. This may probably be more effective in the semi-organized sector. Workmen may extend greater support and cooperation in the working of this idea when they are conscious that the court has travelled a long distance to benefit them (Ghosh and Tiwari, 1991:99). The Shah Committee (1983-84) suggested the setting up of at least one labour court in each district so as to bring justice dispensation closer to the workplace. Camp courts will help bring the dispute resolution forum closer to the workplace and might help the resourceless disadvantaged groups who do not have institutional skills to tap the legal system in their favour (Galanter, 1974). Revival of the Labour Appellate Tribunal (LAT) Till we are able to arrange the setting up of labour relations commissions envisaged in the first point of this part, we should positively think in terms of the revival of the Labour Appellate Tribunal (LAT) with benches all over the country. It worked very well in its earlier phase in laying down the foundations of industrial jurisprudence in India, and in unifying the labour law as made by the higher judicial forums. Otherwise, differing judgements delivered by high courts have taken unnecessary resources in terms of time and money. Consequent to the setting up of the LAT, the jurisdiction of the high courts under Articles 226 and 227 over labour adjudication bodies should be taken away. The LAT must have on it social scientists and industrial relations specialists along with judicial members, and should be a multi-member tribunal. VII ADMINISTRATIVE AND OPERATIONAL ASPECTS IN INDUSTRIAL JUSTICE DISPENSATION: ISSUES FOR DISCUSSION The most basic concern of this paper is, how to efficaciously produce labour justice? A more fundamental aspect of this issue is to strengthen systemic aspects and structures for promotion of administrative industrial justice at the workplace. This means providing a “level floor” (KahnFreund, 1977) to the parties concerned, whereby issues in industrial governance and in sharing of industrial gains can be negotiated without resort to unfair labour practices on either side. The second aspect relates to ensuring a more professional production of labour justice through better management of industrial adjudication forums. Discussion on this aspect also postulates deciding issues of fundamental importance, which have been dealt with, in the earlier sections including the previous one on policy suggestions and recommendations. A yet another related aspect is of tackling administrative and operational dimensions of the working of our adjudicatory bodies. The issues related to this aspect require a thorough discussion in view of their multidimensional ramifications. The two most important problems in our industrial adjudication system, as we noted, are the problems of delay and legalistic bias of our industrial justice system. The areas which require to be discussed by the experts in the field to tackle these problems can be stated as follows: 1. Is it advisable to put a time limit for reference of disputes under Section 10(1) and for filing of application of claims under Section 33 C(2) of the IDA? 2. What concrete aspects need to be examined in determining yardsticks for performance by
labour adjudicators and in fixing judge-disputes or judge-labour ratio? 3. Many times, the union leaders make champertous agreements with the workers while undertaking to represent them before labour courts in termination cases. Under such arrangements, if a worker is reinstated with back wages, the union leader gets a certain agreed percentage of back wages as his or her fee. This method is one of the ways of determining the lawyer’s remuneration in countries like the USA; in India, however, such agreements are void under the Indian Contract Act, 1872. Consequent to such agreements, a tendency develops on the part of the union leader not to settle the case at the conciliation or the adjudication stage. This magnifies the problem of arrears. Also, many brief-case union leaders adopt delaying tactics at the adjudication level so as to increase the quantum of possible back wages. This tendency also gives rise to frivolous litigation as also to the adoption of attrition strategies on the part of union leaders. Can we.evolve measures to check such tendencies? By way of a corollary, what effective ways can be thought of for remunerating union representatives for better services? 4. The IDA framework envisages “participatory” and not adversary adjudication, though in actuality this postulation stands totally subverted. Can we think of concrete steps to operationalize the concept of participatory adjudication? Can an arrangement like laymembers representing employers and workers on industrial tribunals in the U.K. be thought of? The answer to these questions should be explored keeping in view the wider legal culture prevalent in Indian society and the socio-political ethos of a society which has been dominated by bureaucratic rationality and the consequent development of vested interest groups. 5. It is noticeable that labour adjudicators have been using the method of process serving agencies as well as postal methods. There have been problems with both the methods. There are cases of postal delays, mis-delivery, non-delivery, non-acceptance, etc. This contributes to delay. In many states process servers’ facilities are not provided to labour judges. Maximum delays take place at the evidence stage. Can we have an arrangement whereby these methods are done away with completely, and labour courts make parties concerned accountable for producing their own witnesses? 6. Not only the recording of evidence takes maximum time in the adjudication process, but the number of adjournments sought at this stage is also very high. Labour judges don’t investigate the dispute through alternative methods and stick to the usual civil procedure. As noted earlier, their adoption of formalist procedure is attributable to their training and to the possibility of review of their decisions by the higher judiciary. What alternative ways of investigating the dispute can be thought of, in view of the structure of the IDA and the above two problems? Is it feasible to take evidence on affidavits and counteraffidavits instead of taking the evidence in the traditionally adversary way? 7. It is noted that due to heavy workload, nearly 20 cases are listed forevidetice everyday out of which, 18 are adjourned (Tiwari and Ghosh, 1991:92), either because one or the other party wants adjournment or because the court’s time is over before all these cases could be taken up. Therefore, the problem of delay is not magnified just because of the
seeking of the adjournments. If fewer cases are listed for evidence, it does not answer the problem of backlog. This issue needs a thorough discussion. 8. Can we resort to the method of filing of written argument by the parties’ representatives supplemented by oral submissions rather than the present method of long, and many times, semi-relevant arguments? 9. It is fallacious to think that all employers have ‘unlimited resources and unaccounted riches. A large number of young entrepreneurs are entering the industrial world, who have to often operate in a flaggingly competitive environment. Such entrepreneurs may not be interested to adopt wearing out strategies vis-a-vis their adversaries so as to indulge in prolonged litigation. Usually, when union leaders seek adjournments, the labour judges don’t impose costs on them; conversely, managements are often asked to pay costs in similar situations. This issue needs to be debated more comprehensively in all its dimensions in view of these realities. 10. Is it advisable to require a worker filing claim application under Section 33 C(2) of the IDA to first give a notice to the employer by registered post, of say one or two month, stating his or her intention to file a case under this section? This might prove conducive to promoting the settlement process without recourse to the court. 11. Should labour adjudicators give preference to hearing older cases first and give shorter dates in such cases than in newer cases? If yes, how can this be operationalized more concretely? 12. Can we think of more effective ways of implementing awards and orders of labour adjudicators? It is well known that especially in individual reinstatement cases, implementation rate is extremely low. Saini’s (1995: 41) study of collectively espoused disputes had in its sample, two dismissal disputes that were espoused through union. In both cases, the Supreme Court found the dismissal wrongful and reinstated the workers with back wages. But both decisions remain unimplemented, and the workmen concerned), were coerced to give up their claims of reinstatement after taking the back wages in part or full, despite their keen desire to join back (See Saini, 1991a: 365-382). 13. Scholars have shown mixed reactions to Lok Adalats (people’s courts) as a method of justice dispensation. While some consider this method as the need of the hour in labour matters (Shah Committee, 1983: 144), others regard this as a method of imposing fradulent and unjust settlement (Desai, 1994) on helpless people. They see patent injustice in “creating two categories of consumers of justice” (Baxi, 1994). In view of our problems, can we think of alternative methods of labour dispute resolution by reforming Lok Adalats, or in some other ways?
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Year 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993p
Government Intervention 1070 (42.7) 1220 (42.0) 1151 (39.1) 951 (37.7) 614 (35.9) 565 (44.4) 1105 (44.3) 1161 (43.5) 775 (30.7) 632 (23.6) 573 (32.6) 465 (26.5) 464 (27.6) 552 (37.2) 541 (42.1) 642 (46.8) 638 (48.2) 485 (39.4) 458 (34.4) 396 (28.7) 387 (28.2) 439 (33.6) 166 (33.0)
Table 1. Methods of Settlement of Disputes Mutual Settlement Voluntary Resumption 659 (26.3) 753 (25.9) 831 (28.2) 723 (28.7) 501 (29.3) 261 (20.5) 681 (27.3) 834 (31.1) 755 (29.9) 743 (33.6) 590 (33.5) 543 (31.0) 473 (28.1) 352 (23.7) 343 (26.7) 402 (29.3) 295 (22.3) 207 (10.6) 316 (23.7) 334 (24.2) 281 (20.5) 241 (18.4) 123 (24.5)
Total
779(31.0) 931(32.1) 961(32.7) 848(33.6) 594(34.8) 447(35.1) 706(28.3) 687(25.6) 996(39.4) 835(37.3) 596(33.9) 744(44.4) 747(44.4) 584(39.3) 400(31.2) 329(24.0) 391(29.5) 539(43.8) 559(41.9) 649(47.1) 704(51.3) 628(48.0) 214(42.5)
2508 2904 2943 2522 1709 1273 2258 2682 2526 2210 1759 1752 1684 1488 1284 1373 1324 1231 1333 1379 1372 1308 503
P = Provisional Sources: Pocket Book of Labour Statistics, 1971-1994. Table 2. Percentage of Distribution of Conflicts by Results (1970-93) Year
Successful
1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988
34.4 26.4 29.8 36.6 31.5 23.7 20.5 29.7 33.4 28.1 27.7 27.5 24.5 24.6 28.6 27.4 28.4 24.7 27.9
Partially Successful 17.0 23.4 23.9 20.8 21.1 26.1 27.1 27.6 23.9 27.5 23.2 25.6 23.2 21.7 24.3 21.0 26.5 23.5 28.0
Unsuccessful (Failure) 33.4 34.4 31.9 33.1 38.5 40.8 44.1 33.0 37.8 40.5 44.6 42.0 47.7 49.9 43.3 23.6 30.4 25.8 40.9
Indefinite
Not Known
Total
15.2 15.8 14.4 9.5 8.9 9.4 8.3 9.7 4.9 3.9 4.5 4.9 4.7 3.8 3.8 2.0 1.0 2.2 3.2
26.0 22.9 24.3 -
100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100
1989 25.1 22.5 1990 22.7 23.2 1991 19.7 20.0 1992 18.1 22.9 1993P 16.8 27.7 P = Provisional Source : Pocket Book of Labour Statistics, 1970 – 1994.
49.4 50.4 54.2 53.0 45.4
3.0 3.7 6.1 6.7 10.1
-
100 100 100 100 100
Table 3. The number of Labour courts (LCs), Industrial Tribunals (ITs) and Labour Court-cumIndustrial Tribunals (LC & IT) set up by State Government/Union Territories as on 30.06.1994. Sr. No.
Name of State
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
Andhra Pradesh Bihar Delhi Gujarat Haryana Kerala Karnataka Maharashtra Madhya Pradesh Tamil Nadu Uttar Pradesh West Bengal Rajasthan Other States and Union Territories Total
No. of Labour Courts (LCs) 6 14 10 37 0 4 10 38 26 10 19 2 1 20
No. of Industrial Courts (ITs) 2 3 3 16 0 5 4 26 5 1 6 9 1 13
No. of Laour Court-cumIndustrial Tribunals (LC & IT) 3 0 0 0 7 0 0 0 0 0 0 0 6 5
Total
197
94
21
312
11 17 13 53 7 9 14 64 31 11 25 11 8 38
Source: Ministry of Labour, Government of India, Annual Report, 1994 – 95. Table 4. Number of Industrial Disputes Pending in Different States* With its Labour Courts/Industrial Tribunals Sr. No. States 1986 1987 1988 1989 ( June) 1. Andhra Pradesh 2,362 2,692 3,627 7,582 2. Bihar 702 743 955 3,447 3. Delhi 9,044 11,439 13,929 35,129 4. Gujarat 1,08,208 86,949 94,165 97,627 5. Haryana 2,569 3,578 3,184 3,541 6. Kerala 192 304 440 2,790 7. Karnataka N.A N.A NA 12,475 8. Maharashtra 26,548 26,934 34,092 91,924 9. Madhya Pradesh 2,372 2,570 2,320 49,231 10. Tamil Nadu 2,590 3,162 3,695 4,155 11. Uttar Pradesh 6,982 7,447 7,961 7,954 12. West Bengal 3,067 3,214 3,505 3,600 13. Rajasthan 5,025 6,517 7,522 8,156 14. Other States and Union 6,831 6,713 6,892 10,346 Territories Total 176,580 162,262 183,187 338,047 *Other states and union territories could have been added: however, the total number of disputes is small or not added due to lack of space. Source: Tiwari and Ghosh (1991:24)
Table 5. Industrial Disputes Referred to Conciliation and Adjudication, 1992 Sr. No.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10
State
Referred to IR Machinery
Central Sphere Gujarat Himachal Pradesh Karnataka Kerala Maharashtra Orissa Punjab Rajasthan Delh
12,293 6,149 271 1,976 4,047 7,213 1,033 7,131 3,625 12,286
Reported to have failed at conciliation 3,307 3,073 136 852 656 3,054 713 3,833 2,330 5,749
Referred adjudication
Referred Arbitration
N.A 1,601 124 1,913 467 2,512 212 4,470 1,923 4,754
for
8 1 -
Source: Pocket Book of Labour Statistics, 1994. N.A. = Not Available Note:
Data reported have been obtained from State Government and Chief labour Commissioner (C). Remaining State Governments have not supplied the data, it appears.
Table 6. The Number of Industrial Disputes and Application Handled by the Central Government Industrial Tribunal-cum-Labour Courts: Disposal and Pendency. No. of Disputes
No. of Application
Year
Opening Balance
Fresh Institutions
Disposals
1985 1987 1989 1990 1991 1992 1993 1994
1,173 1,638 2,810 3,375 4,266 4,702 5,093 5,807
603 1,191 1,450 1,504 1,440 616 989 1,211
591 509 803 747 1,005 403 440 649
Pendencies Balance
Opening Balance
1,185 2,319 3,437 4,266 4,701 4,915 5,642 6,369
Source: Ministry of Labour, Government of India, Annual Reports
2,796 4,155 9,142 9,514 7,731 8,165 9,829 8,399
Fresh Institutions
Disposals
Pendencies
2,840 4,469 3,943 1,556 2,535 1,783 869 1,519
2,151 2,042 3,891 3,339 2,143 955 2,432 1,814
3,485 6,582 9,224 7,731 8,123 8,993 8,213 8,104
Table 7. A Case-Proceeding’s Profile from a Seven Year’s Sample of Industrial tribunal Cases, Delhi SSr. No. Particulars 1. Tribunal registers the case 2. Claims statement filed after 8 appearances 3. Written statement filed 4. Date fixed filed 5. 18 dates provided for settlements till 6. Rejoinder filed 7. Since then 7 dates obtaining till Total Time: 7 years without settlement
Date 25.10.1982 02.04.1984 29.11.1984 17.12.1984 11.12.1985 95.03.1987 17.03.1989
Source: See Baxi (1994:58)
Table 8. Hearing involved at various stages of, and time taken in tribunal proceedings No. of Hearing Case No.
CS
WS
1 2 3 4 6 7 8 9 10 11 14 15 16 17 26
2 3 5 2 2 1 1 1 2 2 2 1 1 2 2
5 3 2 2 2 1 2 1 1 2 1 1 1 1 1
Rejoinder & Issues 1 2 1 5 1 3 3 1 1 3 1 3 3 1 1 Average:
Preliminary Arguments
Evidence
Arguments
Total Hearing
3 2 14 4
23 5 37 10 10 42 20 15 18 12 15 15 39 31 35 22
1 1 6 2 1 2 3 2 5 9 1 3 2 1 3
35 14 53 35 16 49 29 20 27 28 20 23 44 37 44 37
*Refers to the time involved from reference date to the date of writing the award. Source: Tribunal-proceedings files in the study by Saini (1992a:216)
Time taken (Days) 1097 536 1877 1135 455 1369 1379 578 1491 912 593 921 1365 1151 1838 1113
Average time per hearing (Days) 31 38 35 32 29 28 48 30 55 33 40 40 31 31 42 36
Table 9. Classwise Obtaining of Adjournments
Case No. 1 2 3 4 6 7 8 9 10 11 14 15 16 17 26 Total AVERAGE
No. of Adjournments Management Representatives
No. of Adjournments Workers Representatives
ADV.
ADV.
OUL
3 3 3
8 11 3 12 2 2 8 3 4 16 9 14 92 7.7
8 8 4 7 5 4 4 10 50 6.25
MC 11 3 5 6 1 4 4 34 4.9
IUL 3 6 9 4.5
Averages were computed by dividing the sum total of the number of adjournments all representatives belonging to a class obtaining while representing employer or workmen by the number of cases in which that class of representatives appealed at the tribunal. ADV = Advocate OUL = Outside Union Leader
MC = Management Consultant IUL = Insider Union Leader
Source: Tribunal-proceedings…. in the study by Saini (1992a:225)
