(A guest post by Saurabh Bhattacharjee, Assistant Professor of Law at NUJS, Kolkata)
Part-I
Part-I
PART-II
Why Triple Test Must Not be Interfered With?
The five-judge bench in Jaibir
Singh had not only assailed the precedential value of the BWSSB but also
questioned the substantive worth of the Triple Test and its inclusion of
charitable organisations, liberal professions and educational institutions
within the rubric of industry. Criticising the BWSSB for being ideological and
one-sided, it drew attention to the incongruity between modes of industrial
actions like strikes, lay-off, closure, etc. and the work of hospitals and
educational institutions.[1]
Instruments of collective bargaining and mechanisms of dispute
settlement contemplated by the IDA may indeed be ill-suited for small
charitable and educational institutions. As Justice
Sujata Manohar had observed in Coir
Board, Ernakulam v Indira Devi P.S. that while ‘’it is of paramount
importance that a proper law is framed to promote the welfare of labour…the
kind of measures…may have to be tailored to suit the nature of such
organisations, their infrastructure and their financial capacity as also the
needs of their employees.”[2]
Nonetheless, in absence of a separate law that provides legal protection to
employees in educational institutions and charitable organisations, it would be
regressive to exclude such sectors from the ambit of the definition of industry
through judicial fiat. It must be noted that even the 1982 amendment had
envisaged the formulation of a special law for such employees. The Statement of
Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 had
stated:
“[I]t
is proposed to exclude from the scope of this expression, certain
institutions…However, …it is proposed to have a separate law for the settlement
of individual grievances as well as collective disputes in respect of the
workmen of these institutions.”
In
fact, the Union of India had in its submission in the Jaibir Singh case, referred to the absence of an alternative legal
machinery as a reason for not bringing the amended definition into force. Since
no such legal machinery has been created at the central level till date,
substituting the Triple Test with a more restrictive standard would render
millions of workers vulnerable and without any legal machinery for protection
of their employment rights. As it is, less than 10% of the workforce in India
is covered by formal labour laws.[3]
Therefore, any rollback of the definition of industry which would further exclude
workers from legal protection without creation of a parallel legislative
framework would be an acutely retrograde measure. Keeping this in mind, it is
submitted that the nine-judge bench (if constituted) would be well-served by
maintaining the status quo and not disturb the precedential weight of this
decision. With the Union of Ministry of Labour being currently engaged in the
process of codification of Industrial Relations laws[4],
the question of overhaul of the definition of Industry ought to be left to the
political branches of the government.
It
must also be noted that the language of section 2 (j) is itself very unwieldy. Use of words of very wide denotation like undertaking, manufacture,
calling, service, employment and avocation pose a formidable interpretive
challenge since a literal reading of some of these terms would entail inclusion
of every conceivable type of workplace into the ambit of definition.
Not surprisingly, beginning with the D.N. Banerjee v P.R.Mukherjee,[5]
the first case placed before the Supreme Court on this definition, judges have
struggled to evolve a coherent framework.[6]
As Justice Bhagwati observed in Workman of Indian Standards Institution,
“the tests have not been uniform, they have been guided by empirical rather
than a strictly analytical approach.”[7] Indeed, standards espoused
in different cases have often reflected the ideological preferences of the
judges and not any consistent doctrinal standard founded on the language or
purpose of section 2(j). Therefore, it is arguable that any judicial
reconsideration of the Triple Test may lead to imposition of another
ideologically-driven standard. As such, it would be prudent for the nine-judge
bench to show restraint and persist with BWSSB’s Triple Test – a standard that
has operated as a precedent for more than three decades by now.
Indeed, even if one were to believe that a more restrictive
interpretation of definition of industry would be apposite, it must be noted
that the threshold for overturning an established precedent is much stricter. As Justice Lokur declared in Supreme Court Advocates on Record Association v Union
of India,
better known as the NJAC case, “the power to reconsider must be exercised
sparingly and… merely because a view different from or contrary to what has
been expressed earlier is preferable is no reason to reconsider an earlier
decision.”[8] In
other words, the Court must be shown that the earlier decision is plainly
erroneous or manifestly wrong. While there may be differences of opinion on the
utility of the expansive reading of the BWSSB, it would strain credulity to
argue that the verdict is manifestly wrong.
Looking beyond India, the majority
opinion of the United States Supreme Court in Planned Parenthood v Casey[9] had, while examining a
plea for reconsideration of Roe v Wade[10], had presented before
itself the following questions: a) whether the central rule had been found
unworkable; b) whether the rule could be removed without serious inequity to
those who had relied upon it; c) whether the
central rule had become a doctrinal anachronism; and whether the factual premises of the rule had changed
substantially.[11] If we pose the same questions about the
BWSSB, it would be apparent that there is very little empirically grounded
material to answer any of them in affirmative. Instead in view of absence of an
alternative legal regime, any reversal of the BWSSB framework shall result in
denial of legal protection to millions of workers and defeat the statutory
intent behind the IDA.
An Opportunity to Lift the Haze Around Sovereign Function and
Research
In
the previous two posts, I have sought to refute the argument that BWSSB does
not constitute a binding precedent and proposed that not only have the
standards for setting aside an established precedent have not been met in this
case but that abandonment of the Triple Test in absence of an alternative legal
regime, would lead to exclusion of a large swath of workers from ambit of legal
protection. At the same time, I submit that there are certain points of the BWSSB plurality which have been a source
of confusion in the subsequent cases and do require further clarification. The
foremost among them is the scope of the sovereign function exception. As
mentioned earlier, Justice Chandrachud questioned the very need for such an
exception. But between Justice Krishna Iyer (who wrote for himself, Justice
Bhagwati and Justice Desai) and Justice Beg, there was a majority support
behind the sovereign function doctrine. Yet, we must note that Justice Beg had
a different view on both the terminology and scope of the exception.
Indeed,
even Justice Iyer’s opinion itself spoke in different voices on sovereign
functions. On one hand, he described sovereign functions of the State as 'the
primary and inalienable functions of a constitutional government'. On the other
hand, he hinted that the exception may go beyond such inalienable state
functions with his assertion that apart from Articles 309 to 311 and statutes
dealing with the defence, “other legislation dealing with employment under
statutory bodies may, expressly or by necessary implication, exclude the
operation of the Industrial. Disputes Act, 1947.”[12]
As a result, the status of employees of statutory bodies which are not engaged
in inalienable state functions remain unclear. Indeed, many of recent conflicts
on the definition of industry have pertained to the status of employees of
government departments covered by statutory rules.[13]
A later
2-judge bench decision in Agricultural
Produce Market Committee v Ashok Harikuni had further clarified that the “dichotomy
between sovereign and non-sovereign function could be found by finding which of
the functions of the State could be undertaken by any private person or body”[14]
and that only those which could not be undertaken are sovereign functions.
However even with respect to such inalienable functions of the state, Justice
Iyer had also suggested that not every one of the employees of departments
related to justice, defence, taxation, legislature, would be thrown out of the
umbrella of the Act’. Since the dividing line between those employees to be
excluded and those to be included within the umbrella of the statute was not
clarified, the precise scope of the sovereign exception has been left hazy even
for the classically primary functions of the state.
The other
major element of confusion in the jurisprudence of BWSSB relates to the status of research institutions. While holding
them to be industry even when run without profit motive, Justice Iyer had
reasoned that research throws up discoveries and inventions that are often sold
and patented and are valuable contributions to the wealth of the nation. Does
this mean, as ruled in the Physical
Research Laboratory v K.G. Sharma,[15]
that institutions carrying out pure research which is not exploited for commercial
purpose, would not be industry? If so, how would this proposition be reconciled
with the rejection of commercial character and profit motive as decisive
elements that the Triple Test entailed?
These
questions require elucidation from the nine-judge bench so that some of the
confusion that has emerged in the post BWSSB era can be dispelled. Instead of
looking to reconsider and jettison the Triple-Test which provides for a
universal, uncluttered and comprehensive framework for defining the ambit of
industry, the bench should seek to iron out the creases that have developed in
its application. It is pertinent to note in this context that the reference to
a five-judge bench in Jaibir Singh
had been necessitated by a conflict between Chief
Conservator of Forests v Jagannath Maruti Kondhare[16]
and State of Gujarat v Pratamsingh
Narsinh Parmar[17]
on the status of forestry department and the need for clarity on the scope of
sovereign function exception. This is precisely the task that the Supreme Court
should discharge in the latest reference. A modest endeavour to clarify the
ambiguities in the BWSSB verdict on the status and ambit of sovereign function
exception and research institutions would not only strengthen the BWSSB
framework but also infuse further stability to law on this question. An
overhaul of the definition and possible enactment of a supplementary
legislation is a task better left for the legislature.
[1] State of Uttar Pradesh v
Jaibir Singh, (2005) 5 SCC 1, paragraph 33-3, 42
[3] See National Commission on the Enterprises in the Unorganised
Sector (NCEUS), The Challenge of Employment in India: An Informal Economy
Perspective (2009), available at < http://nceuis.nic.in/The_Challenge_of_Employment_in_India.pdf
>
[4] See Ministry of Labour and Employment, First Meeting for Drafting Labour Code on Industrial Relations Held,
May 7 2015, available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=121373
[5] (1953) 1 LLJ 195
[6] See State of Bombay v
Hospital Mazdoor Sabha (1960) 1 LLJ 251 (SC), Corpn of City of Nagpur v Employees (1960)1 LLJ 523 (SC), Ahmedabad TI Research Assn v State of Bombay
(1960) 2 LL 720 (SC), National Union of
Commercial Employees v Meher (1962) 1 LLJ 241 (SC), University of Delhi v Ram Nath AIR 1963 SC 1873.
[7] (1975) 2 SCC 847, paragraph 1.
[8] (2016) 5 SCC 1, paragraph 673.
[9] 505 U.S. 833 (1992)
[10] 410 U.S. 113 (1973)
[11] Supra n. 20, at page 856
[12] BWSSB v A.S. Rajappa,
(1978) 2 SCC 213, paragraph 50.
[13] See Sub-Divisional Inspector
of Post v Theyyam Joseph AIR 1996 SC 1271, Bombay Telephone Canteen Employees Association v Union of India
(1997) 6 SCC 723
[14] (2000) 8 SCC 61, paragraph 35
[15] AIR 1997 SC 1855
[16] (1996) 2 SCC 293
[17] (2001) 9 SCC 713
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