How Minimum Wage is determined
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In this article Tissy Annie Thomas of Vivekananda Institute of Professional Studies, GGSIPU discusses the fundamental right of Right to Work.

Introduction

Leaving aside the factors which make life livable, it is the practical truth of the economic world that one must earn a living to be able to live. In other words, work to maintain an adequate standard of living. Leave aside the labour power, economic assets are unevenly distributed therefore making each one of us interdependent. Consequently, one must work otherwise the basic necessities of life shall remain unfulfilled. The world has been moving forward based on the policy of give and take. And as we have come a long way from the barter system, the present-day medium which enables such exchange of resources, for which one must ‘work’, is money.

The ‘right to work’ hence is the most essential element of life to be able to live. To enable the fulfilment of the basic need for food, water, clothing and shelter and also something more than just the basic requirements of life one must work to earn.

Right to Work and Part IV of the Indian Constitution.

The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, both of which were acceded by India, in Article 23 and Article 6 respectively, recognise the right to work in an employment of one’s choice and the State’s responsibility to safeguard this right.

However, the Indian Constitution does not explicitly recognise the ‘right to work’ as a fundamental right. It is placed in Part IV (Directive Principles of State Policy) of the Constitution under Article 41, which hence makes it unenforceable in the court of law. Despite the absence of an express wording of the ‘right to work’ in Part III (Fundamental Rights) of the Constitution, it became a ‘fundamental right’ through a judicial interpretation.

All thanks to the wider interpretation of Article 21 made by the Hon’ble Supreme Court through its judgement in Olga Tellis & Ors. v Bombay Municipal Corporation & Ors.- ‘right to work’ was recognised as a fundamental right inherent in the ‘right to life’.

Olga Tellis & Ors. v Bombay Municipal Corporation & Ors. (AIR 1986 SC 18)

The case came about through a writ petition filed by the petitioners under Article 32 before the Supreme Court of India challenging the decision of the Respondents- State of Maharashtra and the Bombay Municipal Corporation, to demolish pavement dwellings and slums.

The Hon’ble Bench which decided the case consisted of  C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D. Tulzapurkar.

Arguments Raised

Arguments of the petitioners-

  1. That such demolition amounted to a violation of the right to livelihood, which could be read under Article 21 along with the right to life.
    2. That the action of the respondents would violate the right of the petitioners under Article 19 (e)(g).
    3. That S. 314 of the Bombay Municipal Corporation Act, 1888 was arbitrary as it enabled the Municipal Commissioner to cause the removal of encroachments without giving a notice to the parties who would be affected.
    4. That the petitioners’ act of encroaching the pavement rose out of an economic compulsion and thus calling them trespassers would be constitutionally not permissible.

Arguments of the respondent-

  1. That as the petitioners had accepted before the High Court that they did not claim any fundamental right to put up huts on public passage routes and had given an undertaking to the High Court that they would not obstruct the demolition of the huts after October 15, 1981, they should be estopped from claiming that the demolition of slums and pavement dwellings violated their right to livelihood.
    2. That no person has the right to put a public property to private use. That the right conferred under Article 19(e) to reside and settle in any part of the territory of India cannot be read as a right to encroach/trespass public property.
    3. That S. 312, S. 313 and s. 314 of the Bombay Municipal Corporation Act do not violate the Constitution but are legislated in public interest.
    4. That the slum hutments near the Western Express Highway, Vile Parle were constructed on an accessory road, which was part of the Highway itself, and were neither regularised by the Corporation nor registration numbers were assigned to them.
    5. That no deprivation of life, directly or indirectly is involved in the eviction of the slum and pavement dweller from public places. That the Municipal Corporation is under an obligation under S. 314 of the Bombay Municipal Corporation Act to remove obstructions on public streets and other public places.

The Judgement- Right to Work

Having paid heed to the arguments of all the parties the Court gave its judgement.

At the very outset, the Court dismissed the argument of the respondent which stated that by the operation of the doctrine of estoppel, the petitioner could not claim the fundamental right- the right to livelihood. The Court held that there could be no estoppel against the Constitution. That, it was to fulfil the vision in the Preamble that Fundamental Rights were conferred and no person could barter away the rights thus conferred by way of Fundamental Rights.

With respect to the case at hand, the Court observed that persons in the position of the petitioners lived in slums and on pavements because they had small jobs in the city. That they chose to live on pavements or in slums in the vicinity of their place of work to avoid the commuting costs which cost them way too much when compared to their meagre earnings. Losing the sheds hence meant losing a job.

The Court also observed that though the petitioners were using public property for private use, they had no intention of committing an offence, intimidate, insult or annoy any person, which is the gist of the offence of ‘Criminal Trespass’ as defined under S.441 of the Indian Penal Code. That they lived there due to economic compulsion.

  • Right to work is a Fundamental Right.

Coming on to the question of the ‘right to livelihood’ as claimed by the petitioners the Court had observed that to make living life meaningful there had to be a means of living, i.e. the means of livelihood.  That, if the right to livelihood was not treated as a part of the right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of earning a living.

The Court held- that, which makes life possible to live, must be deemed to be an integral component of the right to life. For if a person is deprived of his right to livelihood he shall be consequently deprived of his right to life, for life- as enshrined under Article 21, meant more than mere animal existence.

  • DPSP and Fundamental Right.

‘Right to work’ was recognised in light of the supplementary and complementary characteristic of the Fundamental rights and DPSP with respect to each other. Right to life must include the right to work as has already been explained above as per the judicial interpretation. The DPSP, on the other hand, provides for the state’s responsibility to ensure that all citizens have the right to an adequate means of livelihood. Keeping in mind the non-enforceable nature of the DPSPs the Court had held that DPSPs reflect the vision of the State and thus possible steps should be taken in furtherance of it.

Hence, ‘Right to work’ is an outcome of a harmonious interpretation of both the fundamental rights and directive principles of state policy.

  • Right to work v. Right to demand employment from the government.

It should, however, be understood that the State cannot be compelled to provide adequate means of livelihood or work to the citizens by acting affirmatively. In others words, no person can sue the State for not providing him with a job. But if any person is deprived of his right to livelihood except according to just and fair procedure established by law, he can challenge the deprivation as offending the right to life conferred by Article 21.

The landmark judgement of the Supreme Court in the Olga Tellis case thus recognised the right as being inherent in Article 21. Though ‘right to work’ is not a fundamental right explicitly mentioned in Part III of the Constitution of India, it is now read along with the ‘right to life’ under Article 21.

Invoking Olga Tellis case- State of Uttar Pradesh v Charan Singh

State of U.P. v Charan Singh is a 2015 case where an appeal against the order of the High Court of Allahabad was filed.  In this case, emphasis was again laid on the importance of including ‘right to work’ in ‘right to life’ under Article 21 of the Constitution of India.

The respondent who was a permanent employee was terminated from his job as a tube-well operator. Terming his termination as illegal the Industrial Tribunal had ordered for his reinstatement. The appellant however appealed against the order of the Industrial Tribunal and subsequently of that of the High Court of Allahabad, thereby spending 4 decades in litigation.

In light of the facts of the case, the Supreme Court held that the appellant unnecessarily litigated the matter for so long. The Court observed that keeping a person out of job for years was arbitrary and unreasonable. Reiterating the ruling of Olga Tellis case, the court held right to work to be a fundamental right. The employer, the state of U.P., was held liable for its arbitrary and unreasonable action of terminating the service of the respondent and depriving him of his livelihood for a long period.

Labour and Employment Laws

As one goes in search of employment it is important that he/she is aware of their rights and liabilities pertaining to such employment.

The labour laws attempt to regulate employment. These laws contain provisions with respect to working conditions, wages, welfare, social security and employer-employee relation. There a number of Centre and State made laws which aim to protect and safeguard the rights of employees/labours. It is hence mandatory that the contract between the employer and employee adhere to the provisions of the law of contract as well as the prevalent labour laws.

The central laws which address the labour issues are-

Legislating authority Legislation
Central law
  • The Factories Act, 1948.
  • Industrial Employment (Standing Orders) Act, 1946.
  • The Minimum Wages Act, 1948.
  • Payment of Wages Act, 1936.
  • The Industrial Disputes Act, 1947.
  • Employees Provident Funds and Miscellaneous Provisions Act, 1952.
  • Payment of Gratuity Act, 1972.
  • The Payment of Bonus Act, 1965.
  • Maternity Benefit Act, 1961.
  • Workmen Compensation Act, 1923.
  • Equal Remuneration Act, 1976.
State law Shop & Establishments Act.

1. The Factories Act, 1948.

The Act regulates the employment of workers in factories. It lays down provisions for the health, safety, welfare, working hours and leaves of workers in factories and the standards which are to be complied with by the Employer.

The Act empowers State Governments to frame rules so that the local conditions prevailing in the State are suitably addressed.

2. Industrial Employment (Standing Orders) Act, 1946.

The Act applies to all industrial establishments having one hundred or more workmen employed. It requires the industrial establishment to define and explain the conditions of employment to the workmen employed. The conditions of employment which the employer proposes to adopt are to be issued in form of standing orders which shall be applicable only on being duly certified as per the provisions given under the Act. The standing orders must state the following-

  1. Classification of workmen, e.g., whether permanent, temporary, apprentices, probationers, or badlis.
  2. The manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
  3. Shift working.
  4. Attendance and late coming.
  5. Conditions of, the procedure of applying for, and the authority which may grant, leave and holidays.
  6. The requirement to enter premises by certain gates, and liability to search.
  7. Closing and re-opening of sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.
  8. Termination of employment, and the notice thereof to be given by employer and workmen.
  9. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
  10. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.
  11. Any other matter which may be prescribed.

3. The Minimum Wages Act, 1948.

Key provisions of the Act are-

  • The Act has classified workers into four categories- unskilled, semi-skilled, skilled and highly skilled.
  • The Act prescribes for fixing of minimum wage rates of workers in all establishments.
  • The Act also provides for fixing of working hours, that there should be intervals during the day and at least one holiday in a week.
  • The minimum wage rates fixed under the Act are to be revised by the Central and respective State governments periodically.
  • The employer must maintain a record of the employees pertaining to the number of hours worked, wages and its receipts.

4. Payment of Wages Act, 1936.

Key provisions of the payment of wages are-

  • Every Employer shall make timely payment of wages to the Employee without any unlawful deductions from the wages.
  • The Employer must fix a wage period for which the salary shall be fixed and within which it shall become payable, however, such wage period should not exceed a period of one month.
  • The Act requires that the wages should be paid in currency notes or current coins. Wages can be paid by cheque or credited to the employee’s bank account only receiving a written consent for the same by the employee.

5. The Industrial Disputes Act, 1947.

Key provisions of the Act are-

  • The Act provides for the payment of compensation to the workmen on account of closure or lay off or retrenchment.
  • The Act lays down the procedure for obtaining prior permission of appropriate Government for laying off or retrenching the workers or closing down the industrial establishment.
  • The Act aims to stop unfair labour practices on part of employers and workers.
  • The Act also provides for investigation and amicable settlement of industrial disputes in relation to lockouts, layoffs, retrenchment etc.

6. Employees Provident Funds and Miscellaneous Provisions Act, 1952.

The Act seeks to provide financial security to the employees in an establishment by providing for a system of compulsory savings. The Act establishes a contributory Provident Fund to which both the employees and the employer shall contribute. Minimum contribution by the employees is 12% of the basic salary+Dearness Allowance.

This amount becomes payable to the employee after retirement, however, it could also be withdrawn partly for certain specified purposes by the employee.

7. Payment of Gratuity Act, 1972.

The Act provides for the payment of gratuity to all types of employees/workers in all establishments having ten or more employees, on retirement/resignation of the employee/worker. It is calculated at the rate of 15 days salary of the employee for each completed year of service subject to a maximum of Rs. 3,50,000.

8. The Payment of Bonus Act, 1965.

The Act provides for the payment of bonus to employees in certain establishments (as have been listed in the Act) on the basis of profits/production/productivity. The Act is applicable to establishments having 20 or more employees.

The Act further provides that even if losses are suffered by the Employer in an accounting year, he shall pay a bonus equivalent to 8.33% of the salary to the employees.

9. Maternity Benefit Act, 1961.

The Act regulates the employment of women during and after pregnancy.

The employer is required to pay maternity benefits and/or medical bonus and allow maternity leave and nursing breaks. As per the Act, only a woman who worked in the establishment for a period of 80 days during the 12 months immediately preceding the date of her expected delivery will be entitled to receive such maternity benefits.

The Act, however, does not apply to an establishment governed by the Employees State Insurance Act, 1948.

10. Workmen Compensation Act, 1923.

The Act states that in event of an accident if any injury or death is caused of an Employee during the course of employment when the Employee was on-duty, the Employer shall pay compensation to the employee or his legal representatives in accordance with the Act.

11. Equal Remuneration Act, 1976.

The Act applies to all corporations established by or under a Central Act. As the name suggests, the Act provides equal pay for equal work, aiming to curb gender discrimination in workplace.

12. Shop & Establishments Act (State wise).

The act is a state wise legislation wherein each State has made its own rules. The Act aims to regulate the payment of wages, terms of service, holidays, leaves, working conditions, working hours, etc for persons employed in shops and other commercial establishments i.e. unorganised sector.

The labour laws ensure that the workers/employees do not suffer due to the unethical practices of the employer, and hence act as a safeguard against victimisation of the employee/worker.

Know your right

It has been a few decades since ‘right to work’ was recognised, yet many of us still struggle with its practical aspects.

How does one know that his right to work has been violated? How can one approach the Court to seek remedy for such violation? Is unemployment a violation of the right to work? What are the reasonable restrictions on the right to work?

This article shall now make an attempt to answer these questions.

When is the ‘right to work’ violated?

The first and foremost thing to be kept in mind is, leave alone the exceptions, since it is the State which enforces the existence of fundamental rights, the same can only be claimed against the State and not against any private institution. In other words, the right to work can only be claimed against the State and not against any private institution.

Decoding the Supreme Court ruling in Olga Tellis case right to work is violated-

  1. When a person is terminated from his job against the terms of his employment. For instance, as in the Charan Singh case (above), if a permanent employee is terminated from his job without a reasonable cause it amounts to the violation of the ‘right to work’.
  2. When a person is terminated from his job in violation of the already laid down Central or State laws.
  3. When a person is excluded from being employed based on unfair and unreasonable classification.
  4. When a person is deprived of his livelihood in violation of the just and fair procedure established by law, as was the case in Olga Tellis & Ors. v Bombay Municipal Corporation & Ors.

It is important to note that voluntary unemployment or unemployment due to lack of jobs or lack of skills shall not amount to a violation of the Right to Work.

How to approach the Court to seek a remedy?

In event of violation of the ‘right to work,’ a writ petition can be filed-

  • In the High Court of the respective State under Article 226 of the Constitution of India, or
  • In the Supreme Court of India under Article 32 of the Constitution of India.

As opposed to the other fundamental rights which are suspended for the period during which the Proclamation of Emergency is in force, Article 21 and 22 of the Constitution continue to operate. Thus, ‘right to work’ which is included in ‘right to life’ under Article 21 can be claimed even during the period of Emergency and the aggrieved can seek remedy from the Court in event of its violation.

However, a person pursuing an occupation/ trade/ business prohibited by law cannot claim the ‘right to work’ when the State takes measures to curb it. For instance, living on the gains of prostitution, gambling and the likewise is not protected under the ‘right to work’.

Conclusion

To what started as a struggle to stop the demolition of pavement dwellings and slum hutments ended with the Supreme Court recognising ‘right to work’ as a fundamental right. Henceforth, providing every person within the Indian territory with the right to be employed in an employment of their choice, subject to lawful restrictions, to protect them from being deprived of their life. Furthermore, the Right prevents the removal of any person from employment or deprivation of a person from being employed except as per procedure established by law.

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