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Published : May 26, 2010 | Author : aarsha
Category : Constitutional Law | Total Views : 22516 | Rating :

  
aarsha
Aarsha Unnikrishnan
 

 Constitutional Protection On Labour Law’s

In this project I have analyzed the main Articles of our Indian Constitution which protects , supports , and act as a guideline to various labour laws for their effective implementation and functioning. The main Articles are Art 14, 16,19(1)(c), 21, 23. 24, 35,38, 39, 39 A, 41, 42, 43, 43 –A , 46, 47, 32, 226,227.

Art 14 of the Indian Constitution explains the concept of Equality before law . The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any individual, and also the equal subject of all individuals and classes to the ordinary law of the land. As Dr. Jennings puts it: "Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence” It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same. Thus, the rule is that the like should be treated alike and not that unlike should be treated alike.

In Randhir Singh v. Union of India[1], the Supreme Court has held that although the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution. This right can, therefore, be enforced in cases of unequal scales of pay based on irrational classification. The decision in Randhir Singh's case has been followed in a number of cases by the Supreme Court.

In Dhirendra Chamoli v. State of U.P.[2] it has been held that the principle of equal pay for equal work is also applicable to casual workers employed on daily wage basis. Accordingly, it was held that persons employed in Nehru Yuwak Kendra in the country as casual workers on daily wage basis were doing the same work as done by Class IV employees appointed on regular basis and, therefore, entitled to the same salary and conditions of service. It makes no difference whether they are appointed in sanctioned posts or not. It is not open to the Government to deny such benefit to them on the ground that they accepted the employment with full knowledge that they would be paid daily wages. Such denial would amount to violation of Article 14. A welfare State committed to a socialist pattern of society cannot be permitted to take such an argument.

In Daily Rated Casual Labour v. Union of India;[3] it has been held that the daily rated casual labourers in P & T Department who were doing similar work as done by the regular workers of the department were entitled to minimum pay in the pay scale of the regular workers plus D.A. but without increments. Classification of employees into regular employees and casual employees for the purpose of payment of less than minimum pay is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and Cultural Rights 1966. Although the directive principle contained in Articles 38 and 39 (d) is not enforceable by virtue of Article 37, but they may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination: Denial of minimum pay amounts to exploitation of labour. The government can not take advantage of its dominant position. The government should be a model employer.

F.A.I.C. and C.E.S. v. Union of India[4]- the Supreme Court has held that different pay scales can be fixed for government servants holding same post and performing similar work on the basis of difference in degree of responsibility, reliability and confidentiality, and as such it will not be violative of the principle of equal pay for equal work, implicit in Article 14. The Court said, "Equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of the right". Accordingly, the court held that different pay scales fixed for Stenographers Grade I working in Central Secretariat and those attached to the heads of subordinate offices on the basis of recommendation of the Third Pay Commission was not violative of Article 14. Although the duties of the petitioners and respondents are identical, their functions are not identical. The Stenographers Grade I formed a distinguishable class as their duties and responsibilities are of much higher nature than that of the stenographers attached to the subordinate offices.

In Gopika Ranjan Chawdhary v. Union of India[5] the Armed Forces controlled by NEFA were re-organized as a result of which a separate unit known as Central Record and Pay Accounts Office was created at the head quarters. The Third Pay Commission had recommended two different scales of pay for the ministerial staff, one attached to the headquarters and the other to the Battalions/units. The pay scales of the staff at the headquarters were higher than those of the staff attached to the Battalions/units. It was held that this was discriminatory and violative of Article 14 as there was no difference in the nature of the work, the duties and responsibilities of the staff working in the Battalions/units and those working at the headquarters. There was also no difference in the qualifications required for appointment in the two establishments. The services of the staff from Battalions/units are transferable to the Headquarters.

In Mewa Ram v. A.I.I. Medical Science,[6] the Supreme Court has held that the doctrine of 'equal pay for equal work' is not an abstract doctrine . Equality must be among equals, unequals cannot claim equality. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of equal pay for equal work would not apply. Different treatment to persons belonging to the same class is permissible classification on the basis of educational qualifications.

In State of Orissa v. Balaram Sahu[7] the respondents, who were daily wagers or casual workers in Rengali Power Project of State of Orissa in appeal claimed that they were entitled to equal pay on the same basis as paid to regular employees as they were discharging the same duties and functions. The Supreme Court held that they were not entitled for equal pay with regularly employed permanent staff because their, duties and responsibilities were not similar to permanent employees. The duties and responsibilities of the regular and permanent employees were more onerous than that of the duties of. N.M.R. workers whose employment depends on the availability of the work. The Court held that although equal pay for equal work is a fundamental right under Article 14 of the Constitution but does not depend only on the nature or the volume of work but also on the qualitative difference as regards reliability and responsibility. Though the functions may be the same but the responsibilities do make a real and substantial difference. They have failed to prove the basis of their claim and in such situation to claim parity with pay amounts to negation of right of equality in Article 14 of the Constitution. However, the Court said that State has to ensure that minimum wages are prescribed and the same is paid to them.

Art 19 (1) ( c) speaks about the Fundamental right of citizen to form an associations and unions.. Under clause (4) of Article 19, however, the State may by law impose reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India. The right of association pre-supposes organization. It as an organization or permanent relationship between its members in matters of common concern. It thus includes the right to form companies, societies, partnership, trade union,[8] and political parties. The right guaranteed is not merely the right to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form or not to form, to join or not to join, an association or union.. In Damayanti v. Union of India[9], The Supreme Court held that "The right to form an association", the Court said, "necessarily 'implies that the person forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association".

In Balakotiah v. Union of India,[10] the services of the appellant were terminated under Railway Service Rules for his being a member of Communist Party and a trade unionist. The appellant contended that the termination from service amounted in substance to a denial to him the right to form association. The appellant had no doubt a fundamental right to from association but he had no fundamental right to be continued in the Government service. It was, therefore, held that the order terminating his services was not in contravention of Article 19(1 )(c) because the order did not prevent the appellant from continuing to be in Communist Party or trade unionist.. The right to form union does not carry with it the right to achieve every object. Thus the trade unions have no guaranteed right to an effective bargaining or right to strike or right to declare a lock- out .Right to life, includes right to the means of livelihood which make it possible for a person to live—The sweep of the right to life, conferred by Article 21 is wide and far reaching. 'Life' means something more than mere animal existence. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. There is thus a close nexus between life and the means of livelihood and as such that, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right of life. In Maneka Gandhi’s case the Court gave a new dimension to Article 21. It held that the right to 'live' is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. Elaborating the same view the Court in Francis Coralie v. Union Territory of Delhi[11] said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to 'live' is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes "the right to live with human dignity", and all that goes along with it, namely, the bare necessities of life such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human being. In State of Maharashtra v. Chandrabhan[12] the Court struck down a provision of Bombay Civil Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution. In Olga Tellis v. Bombay Municipal Corporation,[13]popularly known as the 'pavement dwellers case' a five judge bench of the Court has finally ruled that the word 'life' in Article 21 includes the 'right to livelihood' also. The court said :"It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Articles 39((a).and 41 require the State to secure to the citizen an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life."

In Delhi Development Horticulture Employee's Union v. Delhi Administration,[14]the Supreme Court has held that daily wages workmen employed under the Jawahar Rozgar Yojna has no right of automatic regularization even though they have put in work for 240 or more days. The petitioners who were employed on daily wages in the Jawhar Rozgar Yojna filed a petition for their regular absorption as a regular employees in the Development Department of the Delhi Administration. They contended that right to life, includes the right to livelihood and therefore, right to work. The Court held that although broadly interpreted and as a necessary logical corollary, the right to life would include the right to livelihood and therefore right to work but this country has so far not found feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and not because it considers it any the less fundamental to life. Advisedly therefore it has been placed in the chapter on Directive Principles, Article 41 of which enjoins upon the State to make effective provision for securing the same, "within the limits of its economic capacity and development".

In D.K. Yadav v.J.M.A. Industries,[15] The Supreme Court has held that the right to life enshrined under Article 21 includes the right to livelihood and therefore termination of the service of a worker without giving him reasonable opportunity of hearing in unjust, arbitrary and illegal. The procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and so it must be right, just and fair and not arbitrary, fanciful or oppressive. In the instant case, the appellant was removed from service. By the management of the M/s. J.M.A. Industries Ltd. on the ground that he had willfully absented from duty continuously for more than 8 days without leave or prior permission from the management arid, therefore, "deemed to have left the service of the company under clause 12(2)(iv) of the Certified Standing Order. But the appellant contended that despite his reporting to duty every day he was not allowed to join duty without assigning any reason. The Labour Court upheld the termination of the appellant from service as legal. The Supreme Court, held that the right to life enshrined under Article 21 includes right to livelihood and 'therefore' before terminating the service of an employee or workman fair play requires that a reasonable opportunity should be given to him to explain his case . The procedure prescribed for depriving a person of livelihood must meet the requirement of Article 14, that is, it must be right, just and fair and not arbitrary, fanciful or oppressive. In short, it must be in conformity of the rules of natural justice, Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. The Court set aside the Labour Court award and ordered his reinstatement with 50 percent back wages.

The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.

In State of Maharashtra v. Manubhai Pragaji Vashi,[16] the Court has considerably widened the scope of the right to free legal aid. The right to free legal aid and speedy trial are guaranteed fundamental rights under Art. 21. Art 39A provides "equal justice" and "free legal aid". It means justice according to law. In a democratic policy, governed by rule of law, it should be the main concern of the State to have a proper legal system. The crucial words are to "provide free legal aid" by suitable legislation or by schemes" or "in any other way" so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. These words in Art. 39A are of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial vast number of persons trained in law are needed." Legal aid is regarded in many forms and at various stages, for obtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifold facets. The need for a continuing and well organized legal education is absolutely necessary in view of the new trends in the world order, to meet the ever-growing challenges. The Legal education should be able to meet the ever-growing demands of the society. This demand is of such a great dimension that sizeable number of dedicated persons should be properly trained in different branches of law every year. This is not possible unless adequate number of well equipped law colleges are established. Since a sole Government law college cannot cater to the needs of legal education in a city like Bombay it should permit private colleges with necessary facilities to be established. For this, it should afford grants-in-aid to them so that they should function effectively and in a meaningful manner. For this huge funds are needed. They should not be left free to hike the fees to any extent to meet their expenses. In absence of this the standard of legal education and the free legal scheme would become a farce. This should not be allowed to happen. The Court therefore directed the State to afford grant-in-aid to them in order to ensure that they should function effectively and turn out sufficient number of law graduates in al branches every year which will in turn enable the State to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. Article 21 read with Art. 39A casts a duty on the State to afford grants-in-aid to recognized private law colleges in the State of Maharashtra, similar to the faculties, viz. Art, Science, Commerce, etc. The words used in Art. 39A are of very wide importance. The need for a continuing and well organized legal education is absolutely essential for the purpose. The State of Maharashtra had denied grants-in-aid of the private recognized Law Colleges on the ground of paucity of funds. The Court held that this could not the reasonable ground for denial of grant-in-aid to such colleges.

The Articles 21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the Constitution, are calculated to give an idea of the conditions under which labour can be had for work and also of the responsibility of the Government, both Central and State, towards the labour to secure for them social order and living wages, keeping with the economic and political conditions of the country and dignity of the nation.

Articles 21, 23 and 24 form part of the Fundamental Rights guaranteed under Part III of the Constitution. Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 form part of the Directive Principles of State Policy under Part IV of the Constitution.

Article 23 of the Constitution prohibits traffic in human being and beggar and other similar forms of forced labour. The second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law. Clause (2) however permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 'Traffic in human beings' means selling and buying men and women like goods and includes immoral traffic in women and children for immoral" or other purposes.[17]Though slavery is not expressly mentioned in Article 23, it is included in the expression 'traffic in human being'. Under Article 35 of the Constitution Parliament is authorized to make laws for punishing acts prohibited by this Article. In pursuance of this Article Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956, for punishing acts which result in traffic in human beings. Article 23 protects the individual not only against the State but also private citizens. It imposes a positive obligation on the State to take steps to abolish evils of "traffic in human beings" and beggar and other similar forms of forced labour wherever they are found. Article 23 prohibits the system of 'bonded labour' because it is a form of force labour within the meaning of this Article. "Beggar" means involuntary work without payment. What is prohibited by this clause is the making of a person to render service where he was lawfully entitled not to work or to receive remuneration of the services rendered by him. This clause, therefore, does not prohibit forced labour as a punishment for a criminal offence. The protection is not confined to beggar only but also to "other forms of forced labour". It means to compel a person to work against his will.

In Peoples Union for Democratic Rights v. Union of India,[18] the Supreme Court considered the scope and ambit of Article 23 in detail. The Court held that the scope of Article 23 is wide and unlimited and strikes at "traffic in human beings" and "beggar and other forms of forced labour" wherever they are found. It is not merely "beggar" which is prohibited by Article 23 but also all other forms of forced labour, "Beggar is a form of forced labour under which a person is compelled to work without receiving any remuneration. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. Every form of forced labour "beggar" or other forms, is prohibited by Article 23 and it makes no difference whether the. person who is forced to give his labour or service to another is paid remuneration or not. Even if remuneration is paid, labour or services supplied by a person would be hit By this Article, if it is forced labour, e.g., labour supplied not willingly but as a result of force or compulsion, this Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service. If a person has contracted with another to perform service and there is a consideration for such service. In the shape of liquidation of debt or even remuneration he cannot be forced by compulsion of law, or otherwise to continue to perform such service as it would be forced labour within the meaning of Article 23. No one shall be forced to provide labour or service against his will even though it be under a contract of service. The word "force" was interpreted by the court very widely. Bhagwati, J. said, 'The word 'force' must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.

In Sanjit Roy v. State of Rajasthan,[19] has been held that the payment of wages lower than the minimum wages to the person employed on Famine Relief Work is violative of Art. 23. Whenever any labour or service is taken by the State from any person who is affected by drought and scarcity condition the State cannot pay him less wage than the minimum wage on the ground that it is given them to help to meet famine situation. The State cannot take advantage of their helplessness.

In Deena v. Union of India [20] it was held that labour taken from prisoners without paying proper remuneration was "forced labour" and violative of Art. 23 of the Constitution. The prisoners are entitled to payment of reasonable wages for the work taken from them and the Court is under duty to enforce their claim.

Article 24 of the Constitution prohibits employment of children below 14 years of age in factories and hazardous employment. This provision is certainly in the interest of public health and safety of life of children. Children are assets of the nation. That is why Article 39 of the Constitution imposes upon the State an obligation to ensure that the health and strength of workers, men and women, and the tender age of the children are not abused and that citizens are not forced by economic necessary to enter avocations unsuited to their age or strength. In People's Union for Democratic Rights v. Union of India,[21] it was contended that the Employment of Children Act, 1938 was not applicable in case of employment of children in the construction work of Asiad Projects in Delhi since construction industry was not a process specified in the schedule to the Children Act. The Court rejected this contention and held that the construction work is hazardous employment and therefore under Art. 24 no child below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the Employment of Children Act, 1938. Expressing concern about the 'sad and deplorable omission', Bhagwati, J., advised the State Government to take immediate steps for inclusion of construction work in the schedule to the Act, and to ensure that the constitutional mandate of Article 24 is not violated in any part of the country. In yet another case the Court has reiterated the principle that the construction work is a hazardous employment and children below 14 cannot be employed in this work.

In M. C. Mehta v. State of Tamil Nadu[22], the Supreme Court has held that children below the age of 14 years cannot be employed in any hazardous industry. Exhaustive guidelines was laid down as to how State Authorities should protect economic, social and humanitarian rights of millions of children , working illegally in public and private sections. The court issued directions to implement directions :

(1) A survey about the child labour within 6 months.

(2) 'The Court identified nine industries first where the work could be taken up namely—the match industry in ,the Diamond Polishing Industry etc.

(3) The employments given could be in the industry where the child is employed, a public sector undertaking, and could be manual in nature inasmuch as the child in
question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family.

(4) In those cases where no alternative employment is available, to the adult- member of child's family the parent would be paid income from interest of Rs. 25,000 the employment given or payment made would cease if the child is not sent for education by parents. -

(5) On discontinuance of the employment his education could be ensured until they complete the age of 14 years and shall be free as required by Art. 45 of the Constitution. It would-be the duty of the Inspectors to see that this call of the Constitution is carried out.

(6) The Secretary of the Ministry of Labour of the Union of India would apprise the Court within one year about the compliance of the directions of the Court in this regard.

It is true that a declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is remedy which makes the right real. If there is no remedy there is no right at all. It was, therefore, in the fitness of the things that our Constitution-makers having incorporated a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself a fundamental right. Article 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights. Article 32 (1) guarantees the right to move the Supreme Court by "appropriate proceedings" for the enforcement of the fundamental rights conferred by Part III of the Constitution. Clause (2) of Art. 32 confers power on the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any of the rights conferred by Part III of the Constitution. Under clause (3) of Art. 32 Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or of the powers exercisable by the Supreme Court under clause (2). Clause (4) says that the right guaranteed by Article 32 shall not be suspended except as otherwise provided for the Constitution. Art 32 thus provides for an expeditious and inexpensive remedy for the protection of fundamental rights from legislative and executive interference.

Under Art. 32 (1) the Supreme Court's power to enforce fundamental right is widest. There is no limitation in regard to the kind of proceedings envisaged in Art. 32 (1) except that the proceeding must be "appropriate" and this requirement must be judged in the light of the purpose for which the proceeding is to be taken, namely, enforcement of fundamental rights. It is not obligatory for the Court to follow adversary system. The Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or a strait-jacket formula because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a right formula of proceeding for enforcement of fundamental right would become self-defeating.

It is clear from Article 32 (1) that whenever there is a violation of a fundamental right any person can move the Court for an appropriate remedy. Traditional rule of locus standi that a petition under Article 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the Supreme Court in its recent rulings. The Court now permits public interest litigations or social interest litigations at the instance of 'public spirited citizens' for the enforcement of Constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. Once the fundamental rights of the labourers is infringed , They could approach the Supreme Court by issuing writ under Art 32 and 226.

Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the Constitution embody the Directive Principles of State Policy which though cannot be enforced through a court of law are nevertheless fundamental in the governance of the country, casting a duty on the State to apply those principles in making laws. The directive principles are therefore subordinate to the fundamental rights guaranteed under Part III of the Constitution[23].

Under these articles it is the duty of the State to promote the welfare of the people, by securing and protecting a social order in which justice social, economic and political shall inform all the institutions of the national life; to make effective provision for securing the right to work, education and public assistance in cases of employment, etc., subject to limits of its economic capacity to make provision for just and humane condition of work and for maternity relief; to endeavor, to secure by suitable legislation or economic organization to all workers work, living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, to promote cottage industries on an individual or cooperative basis in rural areas, and to raise the level of nutrition and the standard of living and improve public health etc.

To achieve the above object the State is duty-bound to direct its policy towards securing an adequate means of livelihood for all citizens; to so distribute the ownership and control of the material resources of the community as best to subserve the common good; to avoid concentration of wealth and means of production to the common detriment; to secure equal pay for equal work both for men and women; to prevent abuse of health and strength of workers, men, women and children of tender age and to protect children and youth against exploitation and against moral and material abandonment.

With the onward march of civilization, our notions as to the scope of the general interest of the community are fast changing and widening with result that our old and narrower notions as to the sanctity of the private interest of the individual can no longer stem the forward flowing tide of time and must necessarily give way to the broader notions of general interest of the community. The emphasis is unmistakably shifting from the individual to the community. This modern trend in the social and political philosophy is well reflected and given expression in our Constitution[24]. The Directive Principles of State Policy, though not strictly enforceable in courts of law, are yet fundamental in the governance in the country. Provisions contained in the chapter on Directive Principles of State Policy cannot be enforced by courts. But while considering the question of enforcement of fundamental rights of a citizen it is open to the court to be guided by the Directive Principles to ensure that in doing justice the principles contained therein are maintained. Fundamental rights, and the directive principles constitute "conscience of the Constitution". The Constitution aims at bringing about a synthesis between 'Fundamental Rights and Directive Principles of State Policy' by giving to the former a place of pride and to the latter a place of permanence, together they form core of the Constitution. They constitute its true conscience and without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution. The view that the principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in understanding and interpreting the meaning and content of fundamental rights is in consonance with the following observations of Chinnappa Reddy, J. in Randhir Singh v. Union of India[25], in the context of the concept of 'equal pay for equal work' in service jurisprudence: "It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be fundamental right. Article 39(J) of the Constitution proclaims 'equal pay for equal work for both men and women' as a Directive Principle of State Policy. . . . Directive Principles, as has been pointed out in some of the judgments of this Court, have to be read into the fundamental rights as a matter of interpretation .... Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) we are of the view that the principle 'equal pay for equal work' is deducible from those Articles."

Article 39 specifically requires the State to direct its policy towards securing the following principles :
(a) Equal right of men and women to adequate means of livelihood.

(b) Distribution of ownership and control of the material resources of the
community to the common good,

(c) To ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.

(d) Equal pay for equal work for both men and women.

(e) To protect health and strength of workers and tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.

(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Clause (f) was modified by the Constitution (42nd Amendment) Act, 1976 with a view to emphasize the constructive role of the State with regard to children. In M. C. Mehta v. State of Tamil Nadu,[26] it has been held that in view of Art. 39 the employment of children within the match factories directly connected with the manufacturing process of matches" and fireworks cannot be allowed as it is hazardous. Children can, however, be employed in the process of packing but it should be done in area away from the place of manufacturing to avoid exposure to accidents. In an another landmark judgment in M. C. Mehta v. State of T. N. known as (Child Labour Abolition case) a three Judges Bench of the Supreme Court held that children below the age of 14 years cannot be employed in any hazardous industry, or mines or other work. The matter was brought in the notice of the Court by public spirited lawyer Sri M. C. Mehta through a public interest litigation under Art. 32. He told the Court about the plight of children engaged in Sivakasi Cracker Factories and how the constitutional right of these children guaranteed by Art. 24 was being grossly violated and requested the Court to issue appropriate directions to the Governments to take steps to abolish child labour..

The Court issued the following directions—
(1) The Court directed for setting up of Child Labour Rehabilitation Welfare Fund and asked the offending employers to pay for each child a compensation of Rs. 20,000 to be deposited in the fund and suggested a number of measures to rehabilitate them in a phased manner.

(2) The liability of the employer would not cease even if after the child is discharged from work, asked the Government to ensure that an adult member of the child's family gets a job in a factory or anywhere in lieu of the child.

(3) In those cases where it would not be possible to provide jobs the appropriateGovernment would, as its compensation, deposit, Rs. 5000 in the fund for each child employed in a factory or mine or in any other hazardous employment.

The authority concerned has two options : either it should ensure alternative employment for the adult whose name would be suggested by the parent or the guardian of the child concerned or it should deposit a sum of Rs. 25,000 in the fund.

(4) In case of getting employment for an adult the parent or guardian shall have to withdraw his child from the job. Even if no employment would be provided, the parent shall have to see that his child is-spared from the requirement of the job as an alternative source of income interest—income from deposit of Rs. 25000—would become available to the child's family till he continues his study upto the age of 14 years.

(5) As per Child Labour Policy of the Union Government the Court identified some industries for priority action and the industries so identified are namely. The Match industry in Sivakashi, Tamil Nadu; Diamond Polishing Industry in Surat, Gujarat; the Precious Stone Polishing Industry in Jaipur, Rajasthan; the Glass Industry in Firozabad; the Brass-ware Industry Moradabad; the Hand made carpet Industry in Mirzapur, Bhadohi and the Lock making Industry in Aligarh in Uttar Pradesh; the Slate Industry in Manakpur, Andhra Pradesh and the Slate Industry in Mandsaur, Madhya Pradesh for priority action by the authorities concerned.

(6) The employment so given could be in the industry where the child is employed a public sector undertaking, and would be manual is nature inasmuch as the child in question must be engaged in doing manual work the undertaking chosen for employment shall be one which is nearest to the place of residence of the family.

(7) For the purpose of collection of funds, a district could be the unit of collection so that the executive head of the district keeps watchful eye on the work of the inspectors. In view of the magnitude of the task, s separate cell in the labour Department of the appropriate Government would be created. Overall monitoring by the Ministry of Labour of the Union Government would be beneficial and worthwhile.

(8) The Secretary of the Ministry of Labour of the Union Government is directed to file an affidavit within a month before the Court about the compliance of the directions issued in this regard.

(9) Penal provisions contained in the 1986 Act will be used where employment of a child labour prohibited by the act, is found.

Pursuant to Article 39 (d), Parliament has enacted the Equal Remuneration Act, 1976. The directive contained in Article 39 (d) and the Act passed thereto can be judicially enforceable by the court. Randhir .Singh v. Union of lndia, the Supreme Court has held that the principle of "Equal pay for equal work though not a fundamental right" is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedies under Article 32 of the Constitution. The doctrine of equal pay for equal work is equally applicable to persons employed on a daily wage basis. They are also entitled to the same wages as other permanent employees in the department employed to do the identical work[27]. However, the doctrine of 'equal pay for equal work' .cannot be put in a strait jacket. This right, although finds place in Article 39, is an accompaniment of equality clause enshrined in Articles 14 and 16 of the Constitution. Reasonable classification, based on intelligible criteria having -nexus with the object sought to be achieved is permissible. Accordingly, it has been held that different scales of pay in the same cadre of persons doing similar work can be fixed if there is difference in the nature of work done and as regards reliability and responsibility. In State ofA.P. v. V. G. Sreenivasa Rao,[28] it has been held that giving higher pay to a junior in the same cadre is not illegal and violative of Articles 14, 16 and 39 (d) if there is rational basis for it.

Article 43 requires the State to take steps, by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. Article 41 directs the State to ensure the people within the limit of its economic capacity and development : (a) employment, (b) education, and (c) public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Article 42 directs the State to make provision for securing just human conditions and for maternity relief. Article 43 requires the State to try to secure by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular, the State shall endeavor to promote cottage industries on an individual or co­ operation basis in rural areas.

Article 43 refers to a "living wage" and not "minimum wage". The concept of living wage includes in addition to the bare necessities of life, such as food, shelter and clothing, provisions for education of children and insurance etc.

Article 45 required the State to make provision within 10 years for free and compulsory education for all children until they complete the age of 14 years. The object was to abolish illiteracy from the country. In a landmark judgment in Unni Krishnan v. State of A.P.[29] the Supreme Court has held that the "Right to education" upto the age of 14 years is a fundamental right within the meaning of Article 21 of the Constitution, but thereafter the obligation of the State to provide education is subject to the limits of its economic capacity. "The right to education flows directly from right to life", the Court declared.

Article 47 imposes duty upon the State to raise the level of nutrition and the standard of living of its people and the improvement of public health. In particular, the State should bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 46 enjoins the States to promote with special care the education and economic interest of the weaker sections of the people, and in particular of the Scheduled Castes and Scheduled Tribes, and to protect them from social injustice and of all forms of exploitation. Article 39-A directs the State to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This article was added to the Constitution pursuant to the new policy of the Government to give legal aid to economically backward classes of people.

Articles 226 and 227.—The power of superintendence under Article 227 is of an administrative as well as of judicial nature. If necessary, the High Court can interfere with the administrative orders of inferior courts.

The judicial orders of the courts and tribunals are equally amenable to the supervisory jurisdiction of the High Court and it is in regard to such orders that the power of the High Court has frequently been invoked. The following principles with reference to the exercise of superintending power over judicial orders may be laid down:

(1) Article 227 does not invest the High Court with an unlimited prerogative to interfere in case where a wrong decision has been arrived at by judicial or quasi-judicial tribunals on a question of fact or law. In the words of the Supreme Court "unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere".14 The power, therefore, has to be used sparingly and only in exceptional cases.

(2) In exercising the supervisory power the High Court does not act as an appellate tribunal. It will not review or reweigh the evidence upon which determination of the inferior tribunal purports to be based or to correct errors of law in the decision except where such error is patent on the face of the record; the question in the case was whether on the facts of the case the dismissal of the employee was wrongful or justified. The Supreme Court held that the High Court could not interfere with the decision of the tribunal.15

(3) The principal grounds for interference under Article 227 are the following—
(a) want or excess of jurisdiction;
(b) failure to exercise jurisdiction;

(c) violation of procedure or disregard of principles of natural justice.16 For an error of law apparent on the face of the record or a plain error of law the High Court would not interfere under Article 227.

The law in the matter of limits of the jurisdiction of the High Court in the exercise of its power under Articles 226 and 227 of the Constitution is well-settled. The following propositions must be taken as well-settled:

(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.

(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.

(3) Further a writ of certiorari could be issued to correct an error of law. But it is essential that it must be something more than a mere error; it must be one which must be manifest on the face of the record.

4) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.

One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal even if they are erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide it wrong as well as right and when the legislature does not choose to confer a right of appeal against that decision it would be defeating its purpose and the policy, if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.18

The discretion could only be interfered with in a case in which the authority, vested with the discretion, acts not upon judicial principles but arbitrarily and capriciously.
--------------------------------------------------------------------------------
[1] AIR 1997 SC 3014.
[2] (1986) 1 SCC 627.
[3] (1988) 1SCC 122.
[4] AIR 1998 SC 32.
[5] AIR 1990 SC 1212.
[6] AIR 1991 SC 2342
[7] AIR 2003 SC 33.
[8] Kulkarni v. State of Bombay, AIR 1931 Bom 105.
[9] AIR 1971 SC 966.
[10] AIR 1958 SC 232.
[11] AIR 1978 SC 597.
[12] (1983) 3 SCC 387.
[13] AIR 1986 SC 180.
[14] AIR 1992 SC 789.
[15] (1993) 3 SCC 258.
[16] (1995) 5 SCC 730.
[17] Raj Bahadur v. Legal Rememberancer, AIR 1953 Cal. 522.
[18] AIR 1982 SC 1943.
[19] AIR 1983 SC 328.
[20] AIR 1983 SC 1155.
[21] AIR 1983 SC 1473.
[22] (1991) 2 SCC 193
[23] Janardhan Reddey v. State of Hyderabad, AIR 1951 SC 218, 228.
[24] State ofBihar v. Kameshwar, AIR 1952 SC 252.
[25] (1982) 1 SCC 618.
[26] (1991) 1 SCC 283.
[27] Surindersing v. Engineer-in-Chief, C.P.W.D., AIR 1986 SC 534
[28] (1989) 2 SCC 290.
[29] (1993) 1 SCC 645.

Authors contact info - articles The  author can be reached at: aarsha@legalserviceindia.com




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