This paper would restrict its purview to the professional workers employed in the Public Sector, (Public Sector Professional Workers PSPW), that is commercial enterprises which are owned and controlled by the Government of India.
The Government of India employs professional workers under three legal
and administrative structures.
i) Direct employees who constitute the civil servants and in the first
rank are bureaucrats who belong to the Indian Administrative Service (the
successor of the colonial British Civil Service). Next in hierarchy come
the subordinate services.
ii) Employees of Societies and Trusts set up under the provisions of
the Societies Act/ Trust Act. i.e., societies/ trusts registered by the
Government. These are mainly scientific or specialised agencies (like the
Councils of Industrial research (like the Council for Scientific and Industrial
Research (CSIR); Medical research (ICMR) Agricultural research (IARI) etc.;
or Trusts like the Port Trusts.
iii) Employees of commercial enterprises, either registered as companies
or as banking, insurance organisations.
The common Feature amongst all these professional workers is that they are employees of the STATE .
2.0 Status of the Professional worker:
2.1. In relation to the Trade Union statutes
Professional workers do not come within the definition of workmen under the Section 2 (s) of the Industrial Disputes Act, 1948 (I.D. Act). Therefore, even if the Associations of Professional Workers are registered under the Trade Union Acts 1926, they do not come under the coverage of the I.D. Act which regulated all matters relating to industrial disputes and their resolution, including the protection against victimisation.
The most serious distortions in the area of Industrial Relations is that the world of employees is divided both vertically and horizontally. The vertical division is achieved through the definition of the word 'Workmen' which divides the employees into various categories, workmen, supervisors and officers/executives. The horizontal division is achieved through multiple trade unions that have affiliations with the various political parties.
Double standards add to the problem
The Courts often take the view that Officers can be brought under the
I.D. Act by default. Two examples are given below:
As part off Government's policy to unbundle the power sector a separate
transmission corporation (Power Grid) was carved out of the National Thermal
Power Corporation (NTPC). The Government as the Owner of NTPC transferred
all the transmission assets of NTPC to Power Grid. NTPC transferred all
the executives enmass along with the assets even without seeking their
consent. This was contested in the H6n'ble Delhi High Court. The Delhi
High Court judgement argued:
"Transfer of employees outside of the service contract or service regulations is not permissible ...On principle and in law on the question of transfer the stand taken by the employees is correct, but then the employees who fall within the category of workmen are covered by section 25 FF of the I. D. Act ... We do however feel that the respondents acted unfairly when they did not even ask the executives to give their option.... Technically one, may say that these executives have not been treated fairly and principles of natural justice required that the executives should have been heard. We would have certainly interfered and would have quashed the Government order and the circular as far as it transferred and absorbed executive employees of NTPC into Powergrid but for ... section 25 ' FF of the I. D. Act has been applied to the executives as well which is a piece of beneficial legislation for the workmen. Jobs of the petitioners, have been saved with continuity of services..."
ii) In HMT Kalmassery workmen were laid off due to acute electrical power shortage and cuts imposed by the Electricity Board. Executives (including Doctors) were also laid off along with the workmen. The Court held that if the provisions of the I. D. Act can be applied to poorly paid workmen why not to the Officers.
The same courts do not consider officers as workmen when victimisation for union work are challenged. There the Courts content that since officers are not workmen they cannot be treated as 'protected workmen' as provided for in the I. D. Act for office bearers of Trade Unions. This is so even if the concerned Officers Association is registered under to Trade Union Act 1926.
The question is not of jobs being saved or loss of wages, the question is of a principle. Either the Officers are covered by the I. D. Act or they are not. There cannot be a discretion in the matter. The Courts have unfortunately completely missed the point. Is it legal to apply a law (and that to at one's discretion) to a person who is not covered by the law, even is he were to gain by such an application?
2.2 In relation to Constitutional Status.
There is ambiguity on whether the Public Sector professional worker is excluded from the purview of Part XII of the Constitution of India which provides for SERVICE UNDER THE UNION AND THE STATES'. Professional workers do not receive the Constitution protection given to Civil Servants under Article 309- 11 of the Constitution of India on the Constitutionally suspect classification that although they are Civil Servants they have not been deemed to occupy a 'Civil Post', within the meaning of Article 311 of the Constitution of India which protects even several categories of temporary employees in the Civil Service. The Hon'ble Supreme Court of India had held in its Judgement on the Bharat Petroleum Co. case,
"It is dangerous to exonerate Corporations from the need to have Constitutional conscience... If fundamental rights could NOT be invoked against companies there would be a breakdown of the rule of law. It may pave the way for a new tyranny by arbitrary administrators operated from behind by the Government but unaccountable to the Constitution"
The Court thus placed the Public Sector Undertakings within the definition of the 'STATE'. This enabled the employees to obtain Judicial intervention through 'Writ Petitions' instead of civil suits since the enterprises were no longer 'Jural Persons' (that is the law treating the companies as legal individuals) There is an attempt to reverse this progressive decision of the Supreme Court and restore the status of Jural Person through a Constitutional Amendment. It would be necessary for the Managerial and Supervisory staff Associations to prevent this retrograde step unless there are alternative statutory provisions to protect them from arbitrariness. The significance of this can be understood from the following Judgement in a matter relating to dismissal of a Public Sector employee (Central Inland Waterways Transportation Corporation Case 1986 3SCC 156,
"The contesting respondent could have filed a civil suit for a declaration that the termination of service was contrary to law...In a suit, however, they would have a declaration and possibly damages for wrongful termination of service but the civil court could not have ordered reinstatement as it would have a nounted to granting specific performance of a contract of personal service. As the Corporation is the STATE they therefore adopted the far more efficacious remedy of filing a writ petition under Particle 226 of the Constitution"
The situation is worse confounded when the Government is disinvesting its equity holding in the public sector to the tune of 49 %. What then would be the legal status of the public sector employees is an open question. The Private sector managerial and supervisory staff have no protection whatsoever and they have only to seek remedies in through a civil suit inspite of the above stated limitation.
2.3 In respect of redressal of grievance and participation in management.
At present the industrial law, particularly in respect of the Professional workers in the Public Sectors does not provide for any effective grievance redressal system. The question of Security for Managerial & Supervisory staff has been examined since 1969 in an exhaustive manner by :
a) The Committee of inquiry on job security in Oil companies (including
Refineries) known as Gokhale Commission. The Commission submitted its report
in April 1969.
b) The Tripartite Committee on Comprehensive Industrial Relations Law
and Composition of Indian Labour Conference. The Committee submitted its
report in September 1977.
c) The Employment Security and Miscellaneous Provisions (Managerial
Employees) Bill 1978 (Bill No 143 of 1978) While this Bill was prepared
and notified in the Gazette of India Extraordinary (Part II 1275-1286)
it was never presented to the Parliament.
d) The Bipartite Committee on Industrial Relations law known as the
Ramanujam Committee. The Committee submitted its report in October 1990.
Inspite of all this examinations nothing concrete has emerged. Some
half hearted and feeble attempts were made to deal with the Managerial
and Supervisory staff.
As stated above, in 1978 a Bill seeking to provide protection and security of service to all managerial employees NOT protected by the Industrial Disputes machinery. But this Bill was never presented to the Parliament.
The Administrative Tribunals Act 1985 (Hereinafter ATA 1985) is deemed
to apply to Professional Workers of the Public Sector (PSPW). But there
are two problems in respect of its application to PSPW
i) The ATA 1985 has, as yet, not been notified for
use by PSPW
ii) The ATA 1985 is a procedural statute which adjudicates
on pre-determined rights brought to its attention. The ATA 1985 does NOT
give substantive right to litigant who come before the tribunals under
the ACT. The notification extending the ACT to PSPW is not likely in the
near future particularly in view of the changed economic policies of the
Government of India with the current emphasis on privatisation. Therefore
there is a need for a substantive discussion on the rights and obligations
of the PSPW.
Thus, the professional and managerial workers find themselves virtually defenceless pursuing either Civil Contractual remedies which are slow and expensive or moving the High Court to exercise its discretionary power to interfere in jurisdictional errors made by Management. This is a very unsatisfactory state of affairs which is bad for employees, employers and certainly is not in line with the objectives of the Public Sector.
In 1990, there was consideration for according some limited participation for the managerial and supervisory staff through a bill titled The Participation of Workers in Management Bill 1990 (Bill No. XXVIII of 1990). However this bill is pending before the Parliament only by default since it was introduced in the Rajya Sabha (Upper House) but is not likely to be taken up at all.
3.O Feeling of relative deprivation - empirical data.
This situation where the professional workers and their organisations find themselves in a limbo has resulted in the professional workers developing a sense of relative deprivation.
An empirical study conducted by the Sri Ram Centre for Industrial Relations (Managerial Unionism - Issues in Perspective) is very revealing. The study was conducted in 40 public sector undertakings and covered 7266 junior and middle management employees. A sense of relative deprivation in term of a) wages, b) job security, c) influence in day to day working of the company was identified.
An assessment of this was made by use of multiple regression analysis using 30 variable (11 variables relating to individual background, 4 variables relating to personality traits, 4 relating to job characteristics and 11 variables relating to organisational climate).
The study has brought out, amongst other things, the presence of a fairly high degree of "relative deprivation" experienced by the junior and middle managers in the public sector. The overall mean score of 66 per cent broken up in terms of its constituent elements showed the following pattern.
Elements of relative deprivation All India X Score
a) Relative Deprivation (Security)
2.328 (77.60 %)
b) Relative Deprivation (Influence)
1.853 (61.78 %)
c) Relative Deprivation (Wages)
1.766 (58.92 %)
Above findings should be of serious concern for anyone concerned with Industrial Relations and productivity.
Management have generally refused to give recognition to Officers organisations and the Govt. of India refuses to recognise the Confederation. In almost all the undertakings, victimisation of office bearers is rampant. Victimisation is done through the following instrumentalities :
· Denial of promotion
· Transfer of Office Bearers
· Denial of work assignment
· Harassment
In the absence of any effective grievance redressal mechanism, victimisation
is silently borne by the victims and the affected associations have a set
back and then regroup.
5 0 Collective bargaining
Notionally, Officers working in the Public Sector Undertakings (PSU)
are employees of a particular undertaking. As such, a contractual relationship
subsists between the particular PSU and any individual Officer. But, in
actual fact, each aspect of this contractual relationship is controlled
by the Government of India. It is the Government o India that determines
recruitment policy, conditions of service, wage conditions and wage revision
and general service and financial policy. Officers are not privy to these
discussions even though such discussions are wholly and entirely determinative
of their work, pay and service conditions.
There is no recognition of collective entities of Officers in PSU and collective bargaining. There is no formal or informal procedure for wage settlement in respect of the Officers. The system followed is "SANCTION BY THE GOVERNMENT IN CONSULTATION WITH THE MANAGEMENT."
Since the Government of India has started disinvesting its equity in the Public Sector Undertakings what this implies is that for those undertakings where the Governments equity would be 51 % and above the system would be that the majority share holder will have the unilateral right to decide the remuneration of employees below the board level. This is bad in law and its validity under the Companies Act needs to be tested in court.
6 0 Conclusion
We can conclude by saying that if the employer has the final power, then the worker cannot be said to be participating in management, however strong the consultative machinery and however attentive the employer may be to the workers views. On the other hand, it can be argued that a sharp line cannot be drawn between the rights of consultation and those of participation except as a matter of dialectics. Decision making processes cannot be absolute.
The Public Sector Professional Workers are subject to discretionary justice and are vulnerable and at the mercy of higher management. The machinery for negotiation is either non existent or weak. Recourse to ordinary courts, is not a solution since courts will simply interpret their contracts. It is only by going to the High Courts and Supreme Court that they may be able to show that their particular Public Sector Undertaking should constitutionally be regarded as a part of the State. We comedown to two options. Either long drawn Court battles or agitation. Such options are bound to induce frustration. The results will be neither productive for the State nor the individual.
Notes:
1. The trade Union Act of 1926 defines under section 2(h) the term
'Trade Union'. means any combination whether temporary or permanent, formed
primarily for the purpose of regulating the relations between workmen and
employers or between workmen and workmen, or between employers and employers,
or for imposing restrictive conditions on the conduct of any trade or business,
and includes any federation of two or more trade unions.
2. The term "workmen' is spelled out under Section 2(s) of the
Industrial Disputes Act 1947, the word is defined as, "any person (including
apprentice) employed in any industry to do any skilled or unskilled, manual,
supervisory, technical or clerical work for hire or reward, whether the
terms of employment be expressed or implied, and for the purpose of any
proceeding under this Act in relation to an industrial dispute, includes
any such person who has been dismissed, discharged or retrenched in connection
with or as a consequence of, that dispute or whose dismissal, discharge
or retrenchment has led to that dispute but sees not include any such person
a) who is subject to Army, Air Force, Navy Act,
b) who is employed in the police service or as an officer or other
employee of a prison;
c) who is employed mainly in a managerial or administrative capacity;
d) who being employed in a Supervisory capacity, draws wages exceeding
one thousand six hundred rupees per mensum or exercises, either by nature
of duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature."
COMMENTS ON
THE INTERNATIONAL LABOUR ORGANISATION'S - COMPENDIUM
OF
PRINCIPLES AND GOOD PRACTICES RELATING TO THE CONDITIONS
OF WORK AND
EMPLOYMENT OF PROFESSIONAL WORKERS.
Summary
· This is a preliminary document for further discussions on the
compendium.
· There is an urgent need for applying the Compendium to the
Public Sector Professional Workers (PSPW) because PSPW have very little
rights and occupy an ambivalent position which adversely affects their
individual rights and efficient working.
· An immediate Joint Consultative Committee (JCC) between NCOA,
(Govt. of India and others concerned should be established to examine in
detail certain aspects of the compendium and report back within a time
bound programme.
· There is an urgent need for immediate research on Manpower
planning. A grant for this purpose should be made available for the NCOA
whose work in this area should be facilitated with access to information
and sufficiency of resources.
· Immediate attention should be given to
a) the right to association in a way that gives PSPW associations representational
rights and makes them operationally and institutionally viable.
b) employment protection including right to terms and conditions, security
ot tenure, fair remuneration, adequate and creative conditions of work
and right to appropriate procedure and
c) participatory decision making at all levels of operation and in
Boards of Management backed with access to information.
1.O Introduction
1.1 This is a preliminary document to act as a basis for further discussions on the application of the 'Compendium of Principles and Good Practices Relating to The Conditions of Work and Employment of Professional Workers.' (ILO 1978)[Hereinafter 'Compendium'].
1.2 The Compendium was adopted by the ILO Governing Body in March 1978 and India was a party to this adoption. To that extent there is an obligation on the Government Of India to implement the Compendium.
2.0 Scope s General Remarks.
2.1 Compendium para 1 to 4 dealing with Scope may be adopted without
modifications since the definitions given therein are relevant to the conditions
obtained in India and with the PSPW.
2.2 Compendium para 5 to 7 may be adopted without modification. It is wholly desirable that PSPW should enjoy at least the standards of protection laid down for all workers in national legislation.
2..3 In this context this Memorandum draws attention of the Government towards the urgent needs to clearly define the term 'Workmen' used in the definition of the term under Section 2 (s) of the Industrial Disputes Act, 1947. In the light of the Several Judgements of the Indian and English Courts it is incumbent on the Government of India to define in more precise terms the position of PSPW vis a vis the term 'workmen'. It is a matter of regret that repeatedly even honest and well meaning persons take the erroneous position that PSPW are part of the Management. This position is not correct either on legal or moral grounds.
3.O Freedom of Association And Collective Bargaining.
3.1 Compendium para 8 to 10 deal with this question. There can be no dispute on the desirability of implementing the provisions in these paragraphs. A feudal culture and work ethic is not compatible with modern technology.
3.2 Right to Association The freedom to form Associations and Unions
is guaranteed by the Constitution of India (Article 19 (1) (a)). The Constitution
does not simply articulate a liberty for individuals to get together but
the importance of the provision is to enable them to get together for the
future and development of the country. Therefore, it is our assertion that
any purposeful implementation of this liberty given in the Constitution
would in the context of the PSPW require:
a) Recognition of the Associations of PSPW as being representative
bodies (i.e., Right to collective representation
b) Accept that the said Associations of PSPW should have the resources
and the infrastructure to participate in the affair of the appropriate
Undertakings and/or authority (i.e., Right to Viability)
3.3 The Right to Collective Representation means that the Association or Union should have the right to negotiate on behalf of its employees and to act in their name. In discharging these representational functions the Associations or Unions should have immunities and not be subject to victimisation or discrimination. With the list provided in the compendium as a basis there is a need to discuss the basis on which representation rights are accorded and what they entail.
3.4 The Right to Viability is an important right. It means that such
Associations and Unions should be:
· Adequately resourced with some contribution coming from the
employees (members ) and some from the employers.
· These would be by way of subscription and levies in case of
employees and infrastructure by way of office, staff, utilities etc. and
· By being given access to information and data for informed
discussion and negotiation.
3.5 It is pertinent to point out that even within the Country and in
case of persons similarly positioned as PSDW, the officers in the Banking
industry have been granted the provisions sought in the para 3.0. Since
1965 the Banks Officers Organisations (in both the Public and the Private
Sector) have been Functioning as regular Trade Unions. Though there is
no instrument of recognition between these unions (Associations ) and the
Bank management, a majority of the Bank Management provide the following
facilities
i) Check off facility to deduct subscription from salary and remit
the same to the Unions Account.
ii) Office premises are Provided in all major centres inclusive of
Air Conditioners, telephones etc. on a rent free basis
iii) A certain number of Office Bearers are allowed to attend to Union
work during working hours and are allowed to meet management personnel
and transact business relating to service conditions of officers both collectively
and as individuals.
iv) Office Bearers are not transferred during their tenure of office
from their posting particularly in the Central/Head /Regional/Zonal Office.
v) Office Bearers continue to get their promotion, seniority protected
irrespective of their position or placement. In some of the banks like
the State Bank of India problem solving machinery has been set up to tackle
problems of officers in normal and crisis times. These are called Negotiating
Council and Industrial Relations Councils. However, it has been the experience
of the banks that these institutions are functioning in a sub-optimal manner
due to lack of any legal instruments. It would be impossible, with any
honesty of purpose, to argue that what is being implemented in banks in
respect of the professional workers is not desirable in case of PSPW.
4.0 Employment, Public Placement Services and other paragraphs
4.1 The Compendium makes detailed and comprehensive under:
i) Employment Para 11 to 14
ii) Public Placement of Services Para 15 to 17
iii) Fee-Charging and Profit Making Employment Agencies Para 18 to
20
iv) Education and Training Para 29 - 37
v) Personnel Utilisation Policies Para 38 to 43
vi) Job Classification para 44 to 45
vii) International Harmonisation and Recognition of Diplomas
Para 4 8 viii)Brain Drain para 49
viii) Organisation of work para 55 to 56
ix) Hours of Work and Annual leave para 57 to 60
x) Occupational Safety and Health para 61 to 67
These need to De carefully studied in detail. To achieve this objectives
we propose the creation of Joint Consultative Committee [Hereinafter JCC]
consisting of representatives of the Government; Management of the Public
Sector, NCOA and others concerned with the public sector. JCC should examine
the Issues mentioned in para 4.1 above and make concrete recommendations
within a time bound programme.
4.2 In this memorandum, we seek to delineate some aspects that should be given priority and immediate attention. The Compendium in accordance with the Employment Policy Convention (No.122 of 1964) argues for free choice of employment in the broader context of full employment policy for all. In order to achieve this it is important to introduce detailed Manpower Planning. (Para 12 of Compendium) that "takes into account as far as possible forecast changes in the economic, technical and social fields, as well as in the needs in society." Manpower planning is essential for the development of technical and professional Public Sector Undertakings on a planned basis to ensure a continuity of competence in the future.
4.3 It is therefore recommended that NCOA be sanctioned research resources to examine ways and means in which manpower planning can be assessed and the best recruitment and development of personnel can be ensured. This must, perforce, involve evaluation of policy in the areas of technical education. The projected research would also look at pre-employment and in-house training bearing in mind the Compendium recommendations on Education and Training (pare 29- 37) and Personnel Utilisation Policies (para 38- 43). This study Group should be well resourced and given access to existing data on manpower aspects in educational training and in-service sectors.
5.0 Security of Employment
5.1 The Compendium discusses these aspects in para 21 to 28. There
is very little employment protection for PSPW. At present the legal
position is determined solely by individual contract with some standardisation
but an inadequate interposition of public interest considerations. The
absence of proper representation and negotiating machinery creates ambiguity
and unfairness.
5 2 This memorandum therefore, recommends that:
a) Right to terms and conditions - at present PSPW are required
to sign a one sided contract. These should not be matters of individual
negotiation but collective standardisation on a bilateral basis. For the
purpose of discussions the Industrial Employment(Standing Orders) Act 1946
may be taken as a working model.
b) Right to appropriate procedure Adequate machinery should be
established to provide for
discussion
· grievance ventilation
· disputes
· conditions of service
· termination
· victimisation
· right to security of tenure
6.0 Remuneration, mobility and Brain drain.
6.1 The compendium discusses these aspects in paras 54, 46, 47 and
49. Principles should be established so that remunerative scales are fixed
which take into account the training and knowledge of various sections
of PSPW. In particular, attention should be paid to giving equal pay for
equal work and also equal pay for similar work. Comparisons should be made
with the private sector and an effort should be made to promote mobility
and prevent brain drains from the country. Dearness Allowance is a protection
from inflation and there can be no case for several methods of neutralisation.
There should be only one Dearness Allowance applicable to all working people.
7.O Incentives for creativity
7.1 The compendium discusses this in para 68 & 69. These are very
important recommendations. They presuppose adequate, suitable and healthy
working conditions. This is far from desirable at present. It is necessary
to examine this aspect also in light of the recommendations made by UNESCO
as well as the practices followed in the scientific research institutions
in India.
8.0 Participation in decision making
8.1 The Compendium discusses this in para 70. The compendium rightly
points out the need for participation in decision making. This is essential
both in the interest of industrial democracy as well as in setting industrial
targets, increasing productivity and efficiency.
8.2 There is therefore a need for :
· institutionalising consultative procedures at various levels
of operation and decision making.
· ensuring an expanded consultative machinery in matters that
affect the working and other interests of particular employees and classes
of employees.
· making it a requirement to consult employees whose rights
and duties are affected.
· permitting representation of classes of employees on various
Boards of Management and consultative committees.
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