National Commission on Labour (1967)||
30.27 We now propose to discuss such general aspects of implementation as have not been covered in the foregoing chapters At the outset, we are happy to note that in the last twelve years emphasis on implementation has been increasing as a matter of policy. The record of implementation, however, is not quite satisfactory. We recognise that while workers have their share of obligations under the law, the main responsibility for implementing awards/ settlements/agreements and observance of law will be of the employer. Unions have to show a greater vigilance in this matter in the years to come. The role which the Government should continue to play is to create/strengthen its implementation machinery to which complaints should reach where redress is needed. It is in this context that we frame our recommendations.
30.28 Firstly, the law itself has to be unambiguous. The manner in which a bill is framed and the processes through which it goes before it is enacted makes it difficult to attain the required measure of unambiguity. The law once framed becomes a subject of debate in courts between parties each of which can bring all the ingenuity at its command to suit its version of the law and there can be no limits to this ingenuity. A judicial authority places a certain interpretation on the statute. If either the law or its interpretation leaves some doubts in the mind of an employer or worker, cases do go to higher seats of justice for more authoritative interpretation. Such delays are annoying in labour matters; these can be minimised only with adequate understanding on both sides. There can be genuine need for securing a correct interpretation. At the same time, where higher seats of justice are approached merely to delay implementation, and this is also reported to happen, it requires to be taken serious note of. We believe that the judiciary in the country is showing vigilance in such matters. With improving social consciousness, we expect that deliberate delays of this type will be avoided by the parties concerned or the courts will show greater firmness in handling such intrasigence.
30.29 The next point arises out of the responsibility we have placed on the employer for implementation. We are not unaware of the fact that employers are a heterogeneous group. There are employers whose scale of operation is large ; but many others operate in a small way. In each group one finds varying degrees of compliance with law/voluntary arrangements. On the whole, however, our inquiries have revealed that the standard of compliance is better in larger establishments. In emphasising the need for all-round improvement in implementation, we wish to draw particular attention to the poor state of implementation in small units and suggest greater vigilance on the side of Government in this sector of employment. Problems of labour administration in small units as have come to our notice have arisen not only because of the dispersal of small units over a wide area creating difficulties for the inspectorate, but also because of the exemption of small units from certain provisions of an enactment, lack of awareness on the part of the worker himself of his rights and the like. When the criterion for applicability of the provisions of an Act depends upon the number of workers employed, it is exploited by some employers by showing the strength of workers below the exemption limit. Breaches of the Factories Act, 1948 about which workers are ignorant are not uncommon. Every non-observance of legal provisions is not brought to the notice of the inspectorate by workers, nor can an inspectorate, howsoever efficient, spot it out.
30.30 Financial difficulties of the small employer are known. In this regard, persons operating on a small scale can have a legitimate complaint. Whether it is a piece of legislation, an award of a tribunal/wage board or a voluntary agreement, difficulties of small owners go unrepresented or even ignored when brought to the notice of the authorities. But, when on the same score, such an employer does not maintain proper records and deliberately evades responsibilities, he loses public sympathy.
30.31 We have also to distinguish between: (i) cases which cause genuine hardship to a
small entrepreneur, and (ii) others where an employer is wanting to deny workers the benefits available under the law by sub-dividing his unit into smaller parts. In the former case, an employer may be wanting to operate on a small scale as a matter of necessity ; in the latter, the intentions of the employer cannot be above board. Our inquiries have revealed the existence of both, the proportion of the latter being disconcertingly high. Instances where in the same premises different boards are hung as a token of separate ownership or where an integrated process is carried on under the same roof with artificial division and shown under different names have distressed us. It should be the joint responsibility of persons in charge of administration, and employers and unions to see that remedies are made available to workers for avoiding the resultant hardship.
30.32 Evidence from workers' organisations, employers' associations, individuals and the various Central/State Governments, has been uniformly critical about inadequate, unsatisfactory and delayed implementation of labour laws. Administrative arrangements for enforcement of enactments like the Payment of Wages Act, Minimum Wages Act, Factories Act, Mines Act, Motor Transport Workers Act, Shops & Commercial Establishments Act, and the like have been stated to be inadequate. The officers appointed under these enactments have not been in a position to inspect all the establishments under their charge. Several units are not being inspected even once during the course of a year and that in respect of some enactments they do not get inspected even once during 3 to 4 years The expansion of the inspectorate has not kept pace with extension in the coverage of enactments and additions to the existing ones. The main reason has been the financial stringency which in our developmental context will be a continuing feature. It cannot therefore be a justification for unsatisfactory implementation ; we feel that priority should be given to strengthening the implementation wing of the Labour Departments of the various State and Central Governments.
30.33 Many State Governments have argued that the Central Government should share the expenses on implementation on a mutually acceptable basis ; and this argument runs through the whole system and every step in making the machinery of administration more effective : whether it is better payment to officials in-charge, raising their status, providing conveyance for officers to help in their inspection duties or increasing the strength of the staff. We are reluctant to accept this argument. When a legislation is passed, though on a subject in the Concurrent List, common responsibility in its implementation is assumed. Arrangements for implementation should therefore be a matter of routine. We are satisfied that there is adequate consultation with State Governments in labour matters before any piece of legislation is enacted. This consultation presupposes willingness on the part of the States to implement the law. In any case, finances for running the administration is a matter of periodic adjustment between the States and the Centre.
30.34 The second point which has been brought to our notice is the inadequacy of trained staff at various levels. Several questions which are being dealt with in the offices created by the Labour Ministry/Department have now acquired their own technicalities which require to be understood by persons charged with the responsibility of dealing with them. Arrangements for training are inadequate; by and large, they do not exist. What we have said about induction of a worker to industrial employment1 equally applies to persons to be initiated to labour administration. But apart from induction, certain aspects of training and retraining in the course of employment are equally important, As a part of training, persons recruited to the junior-most technical posts in the inspectorate under any legislation should be made to spend some time with an office of an industrial association and a well organised office of a trade union. They should also acquire familiarity with the working of industrial establishments. Visits to places where workers live should also be a part of the initial training.
30.35 The other aspect of training is initiation into office procedures. We suggest for this purpose the preparation by each office of the Ministry/Department of a manual of office procedure for the benefit of new entrants. There is a case for giving it wider publicity among those with whom the office has to deal. The manual should contain inter alia information labour (i) the place of the office within the total picture of the administrative machinery of the Ministry/Department, (ii) the working of the different sections of the office, (iii) inter-relationship between the office and sister offices, and (iv) a synoptic view of the organisations with which the new entrant is likely to come in contact. At the senior level, apart from familiarity with the items mentioned above, the officer should have arrangements to understand the broader perspective within which he has to establish his utility to the public. For new
incumbents in such positions, it may not be out of place, where the parties have no objection, to attend collective bargaining sessions, trade union meetings, and discussions organised by trade unions and professional organisations like management associations, Indian Institute of Personnel Management/National Institute of Labour Relations, local Productivity Councils and the like. Situations which an officer has to meet during the course of his work require to be lived with for their better comprehension. We have mentioned these by way of indicators to show how to equip the person better for his work. With these ideas as a nucleus, details should be worked out for training at the two levels mentioned above.
30.36 We also recognise that officers who have been with the Department for a long time need a breath of fresh air. The normal arrangement for this purpose in the all-India services is transfer to a different area of administrative experience. In view of the specialisation which labour is acquiring, this may not be possible for officers who are permanently located in the offices of the Ministry/Department. For them, re-fresher courses will be appropriate. There should be institutional arrangements of the type available in the Central Labour Institute, Bombay, the Indian Institute of Labour Studies (formerly known as the Central Institute for Training in Industrial Relations), Delhi, the Central Employment Research and Training Organisation of the Directorate General of Employment and Training and similar institutions or under arrangements which the Labour Bureau has for training statistical personnel. All these institutions require to be strengthened with a view to making them more useful as training grounds for officers at different levels. It is important that the staff strength in different offices, whether Central or State, should be augmented with a view to enabling the offices to send their personnel for utilising these facilities.
30.37 Training for handling labour situations has another dimension. This does not concern the officers directly functioning under the Ministry/Department of Labour. We have noticed during the course of our inquiry that some senior officers from Departments other than Labour are unaware of the responsibility which devolves on them under labour laws. In the Public Works Department particularly, officers have to supervise contracts which include some clauses having a bearing on conditions of work for labour engaged by contractors. In several cases, particularly in case of small contractors, these clauses are observed more in their breach. And what is more distressing, the engineering staff engaged in supervision does not take adequate notice of such violations. A contract for work has to be supervised as a whole and not merely in its work component. Currently, the contract is supervised with regard to physical output, irrespective of what the contract stipulates as the needs of labour. Efforts have to be made to inculcate this idea among the officials. It should form a part of training to new entrants in the engineering services, whether they belong to the Public Works Department, Irrigation Department or other Departments where construction work is involved. This suggestion should apply to public corporations like the State Transport Undertakings, State Electricity Boards and such other autonomous bodies which are likely to be set up. One of the State Labour Commissioners reported to us of arrangements made by Government by which the Public Works Department consulted him before the contrators' claims were settled. Similar arrangements may be obtaining elsewhere. We, commend them to the Central and States Departments where they do not exist.
30.38 A still more poignant case is that of forest labour. Contractors who take work from such labour are callousówe are conscious of using a strong wordóabout the obligations they have to such labour. Most of the forest labour belongs to Adivasi communities which, though traditionally peaceful and even unconcerned about privileges, can be difficult if continuously provoked by a denial of their rights. Coordination of the type suggested above between the Labour Department and the concerned Department seems to be called for.
New All-India Services
30.39 We have received suggestions for creating two all-India services : one for officers in the National Employment and Training Service in its two wings viz; (i) employment and (ii) training; and another for building up an all-India service for the Industrial Relations Machinery. The arguments in favour of creating these new services are: (a) the all-India cadre strength of the employment and training wings and of the labour inspectorates upwards in the Industrial Relations Machinery is adequate for the creation of the respective services; (b) belonging to an established service makes for better efficiency, loyalties within a service being stronger; and (c) promotion prospects for the officers in an all-India service are better. All these are familiar arguments and require no detailed discussion. The proposals before us have to be considered in two parts, because of the different authorities, Central or State, controlling
the officers proposed for inclusion in the two services.
30.40 The National Employment Service and the training wing of the Directorate General of Employment and Training are now a part of the State administration. The organisation at the Centre, which is now a part of the Labour Ministry, is run mainly with its own officers but it has also officers borrowed from the State Governments, both on the employment and training wings. It has coordinating functions as also those of prescribing standards, laying down procedures, supervising implementation and the like. For this purpose, the experience acquired in the field has indeed proved helpful. While one may not be impressed by arguments like loyalty to a service and promotion prospects of individual officers, the creation of a service can make administration more efficient. As against this, we have to consider the practical difficulties of sustaining an all-India service with all the complications it may create in the new political context which is likely to continue in the future. All things considered, we do not favour the creation of a separate service. A way I out would be to establish traditions at the Centre ¶ and in the States by which persons in technical ¶ services could be made to overcome the feeling of lack of prospects. The Labour Ministry I should take the initiative in persuading State Governments to establish a convention which will safeguard the legitimate promotion prospects of technical officers.
30.41 The Industrial Relations Machinery is distributed over the States and the Centre on a different basis. There is no arrangement as in the case of the employment and training organisation for sharing of expenditure. Each State has its own set-up. Such standards as are required for introducing uniformity in the work of the machinery are evolved in the ILC/ SLC and in the Labour Ministers' Conferences. There is no periodic get-together of the officers of the Industrial Relations Machinery as exists in the case of senior employment and training officers. Recognising these facts, the suggestion made to us is also limited in scope; it concerns only the Central Industrial Relations Machinery.
30.42 The new arrangements that we have suggested for handling unsettled labour disputes in the Industrial Relations Commission, of which the conciliation officer will be a part, leaves little scope for creating a special service. The present cadre of officers, which includes both the inspectorate and conciliation officers, will itself -be split. Most of the advantages which a service can bring to the conciliation officers will possibly accrue to them when they become a part of the Industrial Relations Commission. Persons in the conciliation branch of the Industrial Relations Commission could aspire to become the members of the Commission. In this manner, their chances of promotion will be safeguarded and so will their status improve. We, therefore, do not sec the need for a separate All-India Industrial Relations Service.
30.43 Apart from the suggestions we have made about improving administration, certain other matters which have an effect on better implementation require to be mentioned. All implementation, it will be conceded, will be mostly with a view to reaching benefits to workers. It will be either through persuasion or through penalising the defaulting employer. We want to reiterate our view that labour legislation being mostly social in character, it should develop its sanctions through a process of education. We recognise at the same time the need for penalties; all employers are not alike nor are all unions/workers. Two points which have attracted our attention with reference to the matter of sanctions are worth recording. These are the inadequacy of penalty and withdrawal of prosecution. It has been urged with regard to the former that inspectors do not take the employer to court, and when they do, the penalties which exist in the law today and the lenient view of breaches of law taken by judicial authorities, bring the law itself into disrepute. Penalties are not deterrent enough. Our information about the number of cases of prosecutions launched for violation of the provisions of labour laws and the amount of fines imposed, confirms the impression formed by unions that prosecutions are not frequent, and the impression of both unions and the implementing authorities that penalties are not adequate. Complaints by unions are the result of attitudes of judicial authorities. We feel that if benefits do not reach labour without penalties visiting an employer, the penalties to be written into the law should be such as would deter a habitual defaulter. If a worker held guilty of habitual misconduct is threatened with loss of means of livelihood, a defaulting employer also should attract a penalty harsher than the one the employer is given at present. We do not approve of the imposition of minimum penalties and expect that authorities will take a serious view of repeated breaches of law by the same defaulter.
30.44; There are cases where even after legal action had been initiated by officers in consultation with Government, Government had for unknown reasons changed its mind and the
officers were asked to withdraw the prosecution. Such cases may be rare, but their occurrence even in rare cases is disturbing. Apart from the impression of vacillation on the part of Government, such withdrawals have a demoralising effect on the officers at whose instance the prosecutions are initially launched. We hope that the appropriate authorities would exercise the utmost restraint and discretion in the matter of withdrawal of prosecution once it is launched.
30.45 As we have mentioned earlier, within the Labour Department of a State, the functions I of the Labour Commissioner have been of considerable importance. The Commissioner combines in himself the role of the head of the industrial relations machinery, the inspectorates which look after working conditions and the inspectorate set up for the enforcement of other legislation. His office is the store-house of information essential for the formulation and implementation of labour policies. The studies undertaken by his office have a significant impact on labour. A host of miscellaneous activities are a part of the daily routine of his office within the State. In the Central Government, his counterpart, the Chief Labour Commissioner, has several of these functions but not all. He has, however, additional duties which do not fall within the realm of the State Labour Commissioner.
30.46 Of all these functions, the one relating to settlement of disputes has acquired a relatively greater importance in the years since Independence. These functions are partly under the rights created and partly for creating the rights themselves. In regard to the former, we have suggested an independent agency of the type of the labour court and for the latter the Industrial Relations Commission. These will be the' formal agencies for the two types of disputes. With the new scope envisaged for collective bargaining in the proposed arrangements, the litigious attitude which the parties have had towards each other in the last twenty years is expected to be less rigorous. It is possible that one party to the dispute or the other may like to have the advice and guidance of the office of the Commissioner on matters where difference of opinion arises. The good offices of the Commissioner or his officers could be utilised for this purpose with some effect. By and large, therefore, in the area of industrial disputes, the office of the Commissioner will be concerned with prevention of disputes, a function which has so far suffered neglect, rather than taking up a formal dispute for settlement. The functions of the Commissioner as Registrar of Trade Unions will continue to be with him. In some States as in Maharashtra, Gujarat and Madhya Pradesh, there is an officer within the Labour Commissioner's office who undertakes inquiries and registers unions as representative/recognised unions of different types as required by the State legislation. This function, since it involves an inquiry under the statute for settlement of disputes and certification of unions, will form part of the responsibility of the proposed Commission. The basis for a division of functions in the manner suggested is that all cases which require judicial discretion should be either with the I.R.C. or the Labour Court.
30.47 We have not envisaged any special \/ machinery of the I.R.C. type for settlement of disputes where smaller units or unorganised workers are involved. We feel that with the encouragement already given to such units in the years gone by and the possible encouragement to them in the future, cases which will need attention in this area will increase. It will be the responsibility of the Commissioner to intervene in such matters. By and large, we believe that the approach to such disputes will be informal both from the parties themselves and the office of the Commissioner. The help which the Commissioner's Office will offer is expected to be effective. There will also be cases in larger units where labour is not organised and for which labour will require to be represented in the proceedings before the IRC. The Labour Commissioner's Office should have the responsibility in this regard. What we envisage as the industrial relations functions of the office of the Labour Commissioner in the new arrangement are similar to those of the office of the Government Labour Officer under the BIR Act, 1946
30.48 In view of the diminution of his responsibilities in the field of industrial relations, the Commissioner will be able to devote more attention to the functions of inspection which his office was not able to give sufficient attention all these years. A major responsibility in this regard will be in regard to labour engaged in the Public Works Department, and any department where labour is engaged on a contract basis. It has been the experience in all States that the Commissioner's office has not been able to pay adequate attention to unorganised labour and† labour engaged in sweated industries. The -inspectorate for this work should be with the Commissioner. We are not happy about the way the Shops and Establishments Act has been implemented in different States, particularly where its administration was left to local bodies. Pressures to which the staff under local bodies are exposed in the implementation of this legislation
do not require to be explicitly stated. We are satisfied that these have distracted the inspectorate from discharging its functions efficiently. We recommend, therefore, that the responsibility for the administration of the Shops and Establishments Act should vest with the office of the Commissioner.
30.49 Elsewhere we have suggested arrangements for implementing our recommendation in regard to agricultural labour. The field agency for the purpose has to be the Zilla Parishad and its functionaries at the village level. Their implementational activities will require to be coordinated by the State Labour Department. The operative agency for this purpose will be the office of the Labour Commissioner. Thus supervisory jurisdiction over all inspectorates which look after conditions of work should vest in the Commissioner.
In the proposed reorganisation, the Labour Commissioner will :
(1) advise the Labour Department on problems connected with labour policy ;
(2) advice other Departments which engage labour directly or through contractors in all matters which concern labour ;
(3) supervise the inspectorates which are in charge of regulating working conditions and wages ;
(4) administer the Indian Trade Unions Act, 1926;
(5) certify standing orders under the Industrial Employment (Standing Orders) Act, 1946;
(6) discharge responsibilities similar to those of the Government Labour Officer under the BIR Act;
(7) provide labour intelligence to Government ;
(8) liaise with the Labour Bureau in the organisation of labour statistics and research; and
(9) undertake inquiries which the State Government considers relevant.
The list is illustrative and not exhaustive.
30.50 The functions of the Chief Labour Commissioner (Central) will have to be defined on the same analogy. The Central Government Labour Officers whose functions are mainly in the field of welfare in the establishments to which they have been allotted by the Ministry, may have to be transferred to the Chief Labour Commissioner's Office. The Evaluation and Implementation functions now located in the Ministry should also be transferred to the office of the Chief Labour Commissioner.