Saturday, May 28, 2011

WORKER’S RIGHTS UNDER INDIAN CONSTITUTION by Suvalaxmi Dash, LL.M., NLSIU, Bangalore


UNDER ARTICLE 14
Secretary State of Karnataka v. Umadevi (3), 2006 4SCC1,40  para 48, AIR 2006 SC 1806
Temporary, contractual, casual, daily wage or ad hoc employees appointed dehors the constitutional schemes of public employment form a class by themselves. They cannot claim that they are discriminated against vis-a-vis those who have been regularly recruited on the basis of the relevant rules, or claim to be treated on a par with the latter.

Para 42 of the judgment :
The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.

ARTICLE 16
Union Territory, Chandigarh  v.  Krishan Bhandari (1996) 11 SCC 348 para 7
Article 16(1), read with Art 14 and 39(d), also guarantees equal pay for eual work, so that the court would strike down unequal scales of pay for identical work under the same employer, which is based on no classification or irrational classification. The principle of “equal pay for equal work” cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State.

L.K.Koolwal v. State of Rajasthan (AIR 1988 Raj 2)

“Maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action.”

 Lakshmipathy v. State of Karnataka (AIR 1992 Kant 57)

“Entitlement to clean environment is one of the recognised basic human rights…..The right to life inherent in Art.21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.”

Chetriya Pardushan Mukti Sangarsh Samiti v. State of UP (AIR 1990 SC 2060)

 “Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything, which endangers or impairs that quality of life, is entitled to take recourse to Article 32 of the Constitution of India”
Virendra Gaur v. State of Haryana (1995 2 SCC 577)

“Article 21 protects right to life as a fundamental right. Enjoyment of the life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environmentecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts would cause environmental pollution. Environmental, ecological, air, water pollution etc., should be regarded as amounting to violation of Article 21.”

Vishakha v.  State of Rajasthan and ors. AIR 1997 SC 3011
In the case of Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997 (7) SC 384), the Hon’ble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women.

2. It has been laid down in the judgment above-mentioned that it is the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or implication) as :-
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. Attention in this connection is invited to Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964, which provides that every Government servant shall at all times do nothing which is unbecoming of a Government servant. Any act of sexual harassment of women employees is definitely unbecoming of a Government servant and amounts to a misconduct. Appropriate disciplinary action should be initiated in such cases against the delinquent Government servant in accordance with the rules.

4. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the concerned authorities shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

5. In particular, it should be ensured that victims, or witnesses are not victimized or discriminated against while dealing with complaints or sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

6. Complaint Mechanism :- Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in every organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. Wherever such machineries for redressal of grievance already exist, they may be made more effective and in particular women officers should preferably handle such complaints.

7. Awareness :- Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines  in a suitable manner.
More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guidelines to deal with the problems of sexual harassment of women at the work place (Vishaka v. State of Rajasthan (1997) 6 SCC 241.). The right of workmen to be heard at the stage of winding up of a company was a contentious issue. In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three. The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management. The court observed: It is therefore idle to contend 32 years after coming into force of the Constitution and particularly after the introduction of article 43-A in the Constitution that the workers should have no voice in the determination of the question whether the enterprises should continue to run or be shut down under an order of the court.
It would indeed be strange that the workers who have contributed to the building of the enterprise as a centre of economic power should have no right to be heard when it is sought to demolish that centre of economic power National Textile Workers Union v. P. R. Ramakrishnan (1983) 1 SCC 249.


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