Right of existence includes giving proper remuneration, good treatment, and proving other facilities to the labours. For better functioning of industries, or any other establishments or organization there should be fair labour practice. Fair labour practice is boon for the relationship between the employer and workman and this relationship should be legally regulated. Labour faces exploitation in many ways like paying fewer wages, unequal wages, etc. unfair labour practice can be done on part of both employer and workman by their conducts that are mentioned in schedule five of Industrial dispute Act, 1947, this causes loss and exploitation mostly to the workman as the employer does everything being at safe side. Constitution of India acts as a shield for the workers by safeguarding their interest. Certain articles of chapter 3 and chapter 4 of the Indian constitution which talks about fundamental rights and directive principles of state policy respectively, protect the interests of labour.
Keywords:- Labour, Employers, Unfair Labour Practices, Indian constitution, Wages, Casual and Regular workers, Rights, Equal pay.
It will be rightful to say that giving remuneration, good treatment and other facilities to labours for the work done has its root in a person’s right to existence. To protect the right of both employer and workers relationship between them should be legally regulated. There should be fair labour practice, this will protect the right provided by the constitution of India.
Indian constitution acts as a guideline to various labour laws for their better and effective functioning and implementation. Articles providing guidelines are:-
Article 14, 16, 19(1) (c), 21, 23, 24, part of chapter 3 of the Indian constitution which talks about fundamental rights.
Article 38, 39(d), 39A, 41, 42, 43, 43A, and 49 part of chapter 4 of the Indian constitution which talks about Directive principles of state policy.
Unfair trade practice can be from both employer and worthy men side in different ways. Unfair labour practice is defined in section 2 (a) of the industrial dispute act, 1947. According to this section, unfair labour practice means whatever given in schedule five of the same Act ( The industrial dispute Act, 1947).
Unfair labour practices
An unfair act or omission between labour and employer causes unfair practice. Unfair labour practice constitutes an unfair treatment in any respect by the employer on workmen.
Section 2 (r) says that “unfair labour practice means any of the practices specified in the fifth schedule”[i]
According to this section, the fifth schedule of The industrial dispute Act, 1947 explains unfair labour practices on the part of the employer and workmen.
On the parts of employers and trade union of employers
There are following conduct which comes under the ambit of unfair labour practices:-
- If an employer stops any workmen to form a union or organise a union or stop workmen to participate in work of union then this will be an unfair labour practice.
- If employer threats any of workmen for participating in the union by the instrument of termination, transfer, discharge and many more.
- If an employer terminates any leader or any general member of the union on the basis of actively involved or participating in works of union. This type of termination is basically done by putting false allegations.
- If employer is supporting the person who do not deserve the support means when employer is showing favouritism.
- If the employer stop workmen to participate in legal strike.
- When employers are well aware about crucial /financial condition or problems of their industry or factory but increases the salary of employee and workmen.
- When employer transfers the member only for actively involved or participating in union.
- There is increase in problem but employer refuses or is not ready for collective bargaining.
- There is failure to implement award, agreement or a settlement.
- To recruit new workmen during a strike which is not an illegal strike.
- To indulge in acts of force and violence.
- Proposing or continuing a lock-out deemed to be illegal under industrial dispute Act, 1947.
- To establish employers sponsored trade union of workmen and many more conducts.
On the part of workmen and trade union of workman
By following conducts of workmen unfair labour practices are done:-
- If any office bearer create hurdle during collective bargaining like, refuses to bargain collectively in good faith with employers.
- To support and advice illegal strike.
- If any leader without any reason say or instigate all to work slow is also form of strike.
- “ Ghero” of any employer or other management person.
- Demonstration at the residence of employers or any other management person.
- To indulge in acts of force and violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work[ii].
Thus, above mentioned conduct which talks about unfair labour practice workman or employers can go through. Chapter 5C of Industrial Disputes Act, 1947 deals about unfair labour practice. This chapter has two sections, section 25T and section 25U.
Section 25T:- This section prohibits unfair labour practice and says that no employer or workman or trade union whether registered or not under the trade union Act, 1926 ( 16 of 1926), shall commit any unfair labour practice.
Section 25U:- This section talks about penalties imposed on committing unfair labour practice. Any person committing unfair labour practice shall be punished with the imprisonment for a term which may extend to six months or fine which may extend to one thousand rupees or both.
Unfair labour practice is commonly done by the employers on the workers. Workers are sometimes provoked in such manner that they go for a strike during that period in which strike will become illegal. Employers sometimes declare lock-out just as the revenge of strike called by the workers. Employers perform unfair practice being at a safe position which does not seems to be unfair practice from the side of employers in the eyes of law. Constitution of India acts as an umbrella which provides shade to labours from the exploitation of employers which is done in way of paying less wages sometime even less then the minimum pay scales . There are many articles in Indian constitution which provides safeguard to labours in different matter whether it be issues related to wages, exploitation by excess workload , unequal pay between causal and regular workers and many more.
Following are articles of constitution which safeguard the interest of labour:–
Article 14 of Indian constitution says, “that state shall not deny to any person equality before the law or equal protection of the laws within the territory”[iii].
It is the obligation of the state to undertake the necessary steps. So that every individual receives equal respect and concern which is entitled to as a human being. Within the territorial jurisdiction of the union equal protection shall be secured and given full and free enjoyment of their rights and privileges without any discrimination or favor.
Principle of equal pay for equal work
The rule is not that unlike should be treated alike but it is like should be treated an alike. Unequal pay or pay gap has become an important issue of concern these days to increase in the discriminatory pay scales for similar kinds of work done.
The doctrine or principle of equal pay for equal work was first taken into consideration in Kishori Mohanlol, Bakshi v. Union of India in the year 1962, but it received recognition in 1987 by Mackinnon Mackenzie’s case.
In Randhir Singh v. Union of India, the apex court had held that although the “principle of equal pay for equal work” is nor expressly mentioned in our Constitutional goal under article 14, 16, and 39 (d) of the constitution. Article 16 talks about equality of opportunity in matters of public employment and article 39(d) which is part of directive principle of state policy, talks that there is equal pay for equal work for both me and women.
In a case, the court said that the principle of equal pay for equal work is also applied to casual workers employed on a daily wage basis, it makes no difference whether the workers are appointed by sanctioned posts or not. The government cannot deny a benefit to those workers on the ground that they accepted to work with full knowledge about the payment they will be given. If the government denies the benefit it will be a violation of Article 14 of the Indian constitution.
The doctrine of equal pay for equal work is not an abstract one, supreme Court held this in Mewa Ram v. A. I. I Medical Science[iv],Court also said that their should be equality among equals, unequal cannot claim or demand equality, and this principle do not apply when classification is done on the basis of educational qualifications. In D. S Nakhra v. Union of India[v] the subject matter was related pension not related to wages but five judges bench observed that, in particular the state should strive to minimise the inequality in status, income, opportunity and facilities provided in different ways. Bench also said that article 39(d) of Indian constitution enjoins the duty to state to see that there is equal pay for equal work for both men and women and this direction should be studied in light of Randhir Singh v. Union of India (1982).
Classification on the basis of payment of less than minimum pay is violation of article 14 and 16 of Indian constitution, it was held that daily rated casual labours in P and T department doing similar kind of work as regular workers of the department, were also entitled to minimum pay in the pay scale of the regular workers without increment[vi]. In-State of Punjab and others v. Jagjit Singh and other[vii], apex court has held that the non-permanent employee performing same duty and functions as performed by the permanent employees are entitled to draw wages in the same way the permanent employees receives. The principle of equal pay for equal work must be applied in situations of same work performed irrespective of class of employees.
In F. A. I. C and C. E. S. V. Union of India[viii], apex court held that equal pay for equal work depends upon the nature of the work done, it varies on the basis of degree of reliability, responsibility and confidentiality. In-State of Orissa v. Balaram Sahu court held that equal pay for equal work is although fundamental right under article 14, it not only depend upon the nature or volume of work done but also on the qualitative difference on the basis of responsibility and reliability[ix].
In Frank Anthony Public School employees association v. Union of India[x], it was held that discrimination made by section 12 of the Delhi school education Act, in pay and other conditions of service of school teachers merely on the ground of aided school and unaided school minority school violates the principle of equal pay for equal work. Thus there should be no discrimination.
In a case it was held that the employees of subsidiary banks of the State Bank cannot be treated as the employee of the SBI is not entitled to the benefits regarding allowances and pay, the court also said that the principle cannot be applied in this case[xi]. In a case, the court held that the daily wagers of Haryana roadways are not entitled to the principle of equal pay for equal work with regular and permanent employees as daily wagers hold no post, but the state should ensure that minimum wages are prescribed for such workers[xii].
Article 19(1)(c) and 19 (4)
Article 19(1) ( c) talks about freedom to form association or union ( or co-operative societies). Under clause 4 of article 19 however, the state may by law impose certain reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India[xiii].
In case Kulkari v. State of Bombay[xiv], court held that article 19(1)( c) includes right to form societies, partnership, companies, trade unions and political parties. In a case[xv] court said the right to form association under 19(1)( c) of constitution does not involves or carry with it the concomitant right that such unions should be able to achieve the objectives which might be supposed to underlie the formation of an association / organisation/union.
Right to declare lock-out by employer and right to declare strike by workers may be restricted or controlled by an appropriate legislation that is industrial legislation and validity of such legislation would be tested not according to reference pattern laid down in article 19 clause 4, but by different considerations[xvi]. In Manohar v. State of Maharashtra[xvii], court said that the laws that restricts the term of office of office – bearer of registered society to six years is reasonable restriction on the right to make association.
Right to form association, union does not carry with right to achieve every object. Thus, trade unions do not have right to an effective bargaining or right to declare strike, lock-out as said in P. Balakotiah v. Union of India[xviii]
Article 21 of Indian constitution say that “ No person shall be deprived of his life or personal liberty except according to the procedure established by law”. The right guaranteed in this article is available to both citizens as well as the non-citizens[xix]. here are many rights which is revered under this article, like the to live with human dignity, right to livelihood, right to privacy, right to shelter, right to health and many more.
In Maneka Gandhi Union of India, the rt gave a new dimension to article 21, that the right to live not merely confined to physical existence but also includes right to live with human dignity. Supreme Court following the Maneka Gandhi and Francis Coralie’s case[xx] c rt held in People’s Union of democratic rights v. Union of India, hat Cannon-payment minimum wages to the workers of various asaaidojects in Delhi was Denial of their right to live to workers, it violates article 21 of the constitution. Right to live under article 21 also includes right to livelihood, This was held in Olga Tellis v. Bom. .icipal .p.[xxi].
Taking a base on Francis coralises case to court in Bandhua Mukti Morcha justice tice Bhagwati held ta hat “ it is a fundamental right of everyone in this country…..to live with human dignity, free from exploitation. The right to live under article 21 the lives its life breath from chapter 4 of the constitution, which the talks about the directive principle of state policy particularly clause ( c) and means) of the article 39 and article 41 and 42 white ch includes the protection of health and strength of the immoral another and women ad many more[xxii].
Article 23 and 24
India 23 of Indian constitution prohibits traffic in human beings and forced labour the second part of this article talks about contravention of this provision shall be an offence punishable in accordance with the law[xxiii]. State impose compulsory service for public purposes that will not come under definition of forced labour. This article prohibits the system of bonded labour because it is a form of forced labour. Traffic in human beings mean selling and purchasing of human beings like goods and includes immoral traffic in women and children for immoral another purpose pose this was said in Dubar Goala v. Union of India[xxiv].
In Sanjit Roy v. State of Rajasthan[xxv], court said that payment of wages which is lower then the scale of minimum wages to person working on Famine relief work is violative of article 23 of constitution. Advantages cannot be drawn from the helplessness of workers.
Labour taken from the prisoners in the without paying them proper remuneration comes under ambit of forced Labour and it violates article 23 of the constitution[xxvi]. In People’s Union for Democratic Rights v. Union of India[xxvii], court said that all unwillingly workers or labours is forced labour whether they are paid or not and this is prohibited, law laid down in this case and Sanjit Roy case has been fully endorsed in Bandhua Mukti Morcha case where it was held that bonded labour is crude from of forced labour which is prohibited by article 23 of constitution.
Article 24 of the constitution talks about “prohibition of employment of children in factories, etc.-No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”
Court in MC. Mehta v. State of Tamil Naidu[xxviii], has prohibited employment of children below the age of fourteen, and said for the arrangements for the education of those children involved by creating fund and also providing jobs to their parents or other eligible members of family. It was held in Salala Hydro Project. Jammu and Kashmir[xxix]construction work is hazardous employment and children below fourteen cannot be employed in this kind of work.
Article 38, 39, 39 A
These articles are part of chapter 4 of constitution dealing with directive principles of state policy.
Section 38 talks about “ state to secure a social order for the promotion of welfare of the people by securing and protecting of welfare of the peoples by securing and protecting as effectively as it may a social order in which justice – social, economic, and political shall inform about all the institutions of national life”.
Article 39 of the constitution talks about principles of policy that be followed by the state for securing or protecting economic justice. 39 (a) provides equal right of men and women to adequate means of livelihood, 39 (c) deals about principle of equal pay for equal work for both men and women, 39 ( e) talk about protecting health and strength of workers and many more.
Article 39 A talks about the equal justice and free legal aid to economically backward classes. Speedy trail and legal aid has been held as fundamental right under article 21 of constitution which is available to all prisoners and is enforceable by courts, it was also held in case H.M .Hoskot v. State of Maharashtra[xxx], and Hussainara Khatoon v.Home Secretary, State of Bihar[xxxi], that state is under duty of providing a lawyers to the poor person and also pay the fee to the respected lawyer.
Article 41, 42, 43 and 43A
Article 41 of constitution talks about’ “ right to work, education and public assistance in certain cases, this article directs the state to ensure people within the limits of its development and economic capacity: education, employment, and public assistance in different cases like sickness, old age, unemployment , disablement and in other cases of underserved”. In Radha Krishna mills Ltd. V. Industrial Tribunal[xxxii], court said that there is no liability of state under article 41 to pay compensation to workers who has suffered continuous unemployment due to act of government, like shortage of electricity supply.
Article 42 of the constitution directs “the state to make provisions for securing the just and human conditions of work and maternity relief”.
Article 43 of the constitution says that “the state shall endeavour to secure by way of suitable legislation or economic organization or in some other way to all the workers, industrial, agricultural or otherwise, condition of work or living wage and to promote cottage industries on cooperative or individual basis in rural areas”. In Bijoy Cotton Mills Ltd. V. State of Ajmer[xxxiii], court said that fixation of minimum wage is not violative of article 19(1)(g)[xxxiv] and 43 of constitution. A wage scale or structure should serve to promote fair remuneration to workers ensuring personality and security, social dignity and many more was said in a case[xxxv].
Article 43 A of the constitution deals about “ participation of workers in management of industries” the [xxxvi]state should take steps for suitable legislation or in other way so that the participation of workers in management of undertaking, establishments and other organization involved in industry be secured[xxxvii].
All over the world there is domination of employers on the workers, this domination leads to exploitation of workers. Although unfair labour practice can be from both the side, but mostly workers are the one to faces the problems. Both the right of lock-out and strike given to employers and workman respectively may be controlled or restricted by appropriate industrial legislation to maintain the peaceful relation between them, or in simple words the problem of unfair treatment by unfair practice that causes harassment and exploitation of labour can be solved when there is adoption of fair labour practice. Constitution of India provides different safeguard to the labour to protect the interest of labour, but there is lack of awareness among the labour section, this is the reason that, there is an urgent need of spreading awareness among these groups so every one can get the protection shield of the constitution.
[i] Industrial Dispute Act, 1947.
[ii]Legal manual, labour and industrial laws, Fifth schedule , Industrial dispute Act, 1947, 733 and 734.
[iii] Universals, The Constitution of India, Bare Act ,2018.
[iv] AIR SC 2342 (1991).
[v] 1 SCC 305 (1983) : AIR SC 130 (1983).
[vi] The Daily rated casual labour v. UOI, 1 SCC 122 (1988).
[vii] Decided on October 26, 2016.
[viii] AIR SC 32 (1998).
[ix] AIR SC 33 (2003).
[x] 4 SCC 707 (1986).
[xi] Associated bank officers association v. State of bank of India, AIR SC 32 (1998).
[xii] State of Haryana v. Tilak Raj, AIR SC 2658 (2003).
[xiii]Dr .J .N. Pandey, Constitutional law of India, 190 (42nd edition, 2005).
[xiv] AIR Bom. 105 (1931).
[xv] All India Banks Employers Association v. National Industrial Tribunal, AIR SC 171 (1962), and Rghubar Dayal Jai Prakash v. Union of India, AIR SC 263 (1962).
[xvi]Shukla’s, supra, 162 and 163.
[xvii] AIR Bom. 47 ( 1984).
[xviii] AIR SC 232 ( 1958): SCR 1052 ( 1958).
[xix] Pandey, supra, 215.
[xx] AIR SC 597 (1976).
[xxi] AIR SC 180 (1985).
[xxii] Shukla’s, supra, 211.
[xxiii] Pandey, supra, 287.
[xxiv] AIR Cal. 496 (1952).
[xxv] AIR SC 328 (1983).
[xxvi] Deena v. UOI, AIR SC 1155 (1983).
[xxvii] 3 SCC 235, 256 (1982).
[xxviii] AIR SC 699 (1997).
[xxix] AIR SC 177 (1984).
[xxx] AIR SC 1548 (1978).
[xxxi] AIR SC 1322 (1976).
[xxxii] AIR Mad 686 (1954).
[xxxiii] AIR SCC 33 (1955): 1 SCR 752 (1955).
[xxxiv] Freedom to practice any profession, or to carry on any occupation, trade or business.
[xxxv] Pplychen Ltd. V. Industrial tribunal, 1 SCC 885 (1972).
[xxxvii] Pandey, supra, 374.