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LABOUR RESEARCH

SEPTEMBER-OCTOBER-2018

VOL : 15 NO.5 BANGALORE SEPTEMBER-OCTOBER-2018

UNION IS STRENGTH

LABOUR FRIENDLLABOUR FRIENDLLABOUR FRIENDLLABOUR FRIENDLLABOUR FRIENDLY LEGISLAY LEGISLAY LEGISLAY LEGISLAY LEGISLATIONSTIONSTIONSTIONSTIONSGRAGRAGRAGRAGRATUITY ACTTUITY ACTTUITY ACTTUITY ACTTUITY ACT

EditorialEditorialEditorialEditorialEditorial

he Government of India is yet to come out withcomprehensive legislations which are labour friendly in

the country. One of the enactments which was conceivedkeeping the retirement of the workers in the country wasthe Payment of Gratuity Act 1972 – one of the first labourlaw which contemplated the need for providing succour andrelief to all those workers who retire on superannuation/death/resignation/retrenchment from their employment. TheGratuity amount is treated as a reward, or superannuationbenefit or a relief to the workers on their retirement or totheir families on their death while in service so that they

are able to lead a good life on the cessation of their services. The Act wasextended to all those Government employees, Public Sector Units and the institutionswhich are managed and supported by the Governments as also the Private Companies.The Payment of Gratuity Act 1972 has undergone a series of changes/amendmentswhich were meant to improve the application of the Act to the workforce in thecountry.

The Payment of Gratuity Act 1972 was a law which makes compulsory on the partof all the employers whether in Public Sector or Private Sector to pay a lumpsumrelief at the time of the cessation of service either by superannuation, death orby resignation provided they have completed a minimum service of 5 years. Theemployer has every right to provide a better scheme than the minimum assuredunder the Payment of Gratuity Act of 1972 whenever they want to make theiremployment attractive to the workers in the organization. However, no institutioncan escape from the liability of the application of the Act on any grounds unlessthey have a better Gratuity Scheme. In State Bank of India, the Managementwanted that they should be exempted from payment of Gratuity Act since theyhave two superannuation benefits viz., Provident Fund Scheme and Pension FundScheme, which was rejected by the Government on the grounds that this is astatutory enactment and compulsory to every employee and hence the State Bankof India should also pay the Gratuity as per the Payment of Gratuity Act 1972.

It has been the demand of the worker’s unions since a long time that the existingprovisions of Gratuity Act should be made workers friendly. At present the

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TO SEEK A FAVOUR IS TO BARTER AWAY ONE'S FREEDOM

2 Labour Research,September-October-2018

employees who are on contractual employment/temporary employees are not eligible for thebenefit of the Gratuity under the Gratuity Act.The Government has so far been makingimprovement only in regard to the Gratuity Ceilingunder the Act. The Government of India whenevermakes the changes in the Ceiling of Gratuityamount, the implementation is effective fromthe date of the amendment to the Act in theParliament, which has been causing a lot ofhardship to the workers in the Private Sector asalso the institutions owned by the Government ofIndia under Public Sector as they do not extendthis benefit from the same date as it wasextended to employees in the Government.

The Workers Union have also been demandingthat the Gratuity should be treated as a benefiton par with the Provident Fund and should be paidto each and every employee on the basis of theservices he rendered in an institution withoutinsisting for the minimum service of 5 years.The big stumbling block in this area has been thepowerful industry lobby which always comes inthe way of any improvement in the Gratuity Act– since they consider it as an additional burdenon their establishment.

It is happy development that the Government ofIndia under the present Government is seriouslyconsidering some of these demands of the Union.The one which is already contemplated is to reducethe minimum service required under the act from5 years to 3 years. The other one is to bring allthe workforce whether they are under permanentemployment or temporary employment or on acontractual employment under the purview of thePayment of Gratuity Act.

The Government is also contemplating whetherthey can improve the method of calculation ofthe eligible Gratuity Amount under the act. Atpresent the employees are entitled to get 15days of salary last drawn that is Basic Pay andDearness Allowance for every year of completed

service. For the purpose of computation ofcalculation of the 15 days salary, the monthwill be taken as 26 days instead of 30/31days. The definition of 5 years of continuousservice was challenged in a number of Courts.The residual service after considering the fullyear of service is treated as one year in casethe residual service is more than 6 months andin the cases of lesser months of service thesame is ignored.

The issue of continuous service was challengedin one of the cases filed before the High Courtof Rajasthan and it was held that there is noneed for the employee to complete full 5 yearsof continuous service and thus the benefit ofthe fraction service of more than 6 months wasextended and the court also opined that thereis a need to examine the possibility of takinginto account the services rendered elsewhereas well for the purposes of the total requirementof service. However, with the proposed changescontemplated by the Government to reduce the5 years minimum service to 3 years, it willprovide relief to millions and millions of workerswho are serving as contract labours as well asthe temporary employees on a continuous basisif the Government succeeds in convincing theindustry lobby for these changes in the GratuityAct.

There are number of decisions by the variouscourts declaring that the Gratuity amount is atrust amount due to the family of the employeesand it cannot be attached for the purpose ofrecovery from the employee concerned. TheAct also prescribes in clear terms that thegrounds under which the Gratuity Amount canbe forfeited and they are very stringent innature. Any attempt by the Managements tovictimize the workers under the provisions ofthe Gratuity Act and deny the same has beenstrongly condemned by the courts in variouscases. The full amount of Gratuity payable inthe case of death is exempted from the Payment

NEVER BEND BEFORE THE INSOLENT MIGHT

Labour Research,September-October-2018 4

of Income Tax.

There are a number of cases challenging some ofthe decisions in regard to the Payment ofGratuity in several courts. These cases aremainly in regard to the discrimination of thedate of implementation of the Act while makingimprovement in the maximum ceiling prescribedunder the Act.

The calculation of the Gratuity in the case of theGovernment servants is slightly different in thesense they are given the benefit of 1/4th of lastdrawn salary that is the Basic Pay and Dearnessallowance for every 6 months of service with themaximum eligible lumpsum payment of 16 months’salary with a Maximum ceiling of Rs.20 lacs asper the Payment of Gratuity Act. The entireamount is exempted under the Income Tax. Theworkers in the Private Sector are also eligible toclaim the exemption of Income Tax upto the amountof Rs.20/- lacs as per the Act.

There are several infirmities which is affectingthe workers in the Private Sector in comparisonto the employees in the Government service.The Income Tax in real sense is fully exemptedin respect of the Government servants sincethey have a ceiling of Rs.20 lacs and theexemption is also available upto Rs.20 lacswhereas the other employees serving in theprivate sector are required to pay Income Taxin case they are entitled to get more than theceiling prescribed by the Government under thePayment of Gratuity Act. This needs to becorrected. The other infirmity is in regard tothe date of effect. The Government should fixup a common date for every one including thosewho are the Government servants to avoid thisdiscrimination whenever the amendments areaffected in regard to the ceiling of gratuitypayable under the Gratuity Act.

The Gratuity is a welfare scheme. There is noneed to the Government to go for consultationfor each and every improvements with the

industry lobby that always come in the way ofany improvement in the superannuation benefitscontemplated by the Government. It has alreadycaused a lot of damage to the working class inthe country. Hence, the Government should goahead with the improvements in the GratuityAct on its own assessment rather than going forthe mercy of the industrial lobby if theGovernment is really interested to provide succourto the working class at the fag end of theirlives.

It is fervent desire of the All India State BankOfficers’ Federation that the Gratuity Act shouldbe comprehensively amended/updated providingfor the following reliefs to the workforce in thecountry.

(a) The minimum service for the purpose ofthe Gratuity should be done away with.The minimum number of employees shouldbe also reduced from the present numberof 10 to 5.

(b) The workers should be eligible for thereceipt of Gratuity on the basis of theirservices irrespective of the fact whetherthey are employed permanently,temporarily or on contractual basis;

(c) The entire amount received by way ofGratuity should be eligible for exemptionunder the Income Tax Act;

(d) The Payment of Gratuity should becomemandatory to all establishments whetherin Public or Private Sector and should bebrought under the act and no exemptionshould be provided from the Payment ofGratuity under the Act.

Let us hope that some of the initiatives whichare in the pipeline due to the interest shown bythe Government will fructify shortly and benefita large number of workers in the country.

DEFEND THE ECONOMIC SOVEREIGNTY OF THE COUNTRY


he Indian economy isconsidered as the fastest

growing economy in theworld. It is expected tobecome the 5th largesteconomy in the world in thenear future. The GDP growthis also put on highertrajectory anticipating itaround 10% in the nearfuture. In these backgrounds,the country was expected togenerate sufficient employment opportunities to theyouth of the country. The creation of jobs is a keyperformance of any Government. All their economicactivities is surrounded with the single objective ofcreating jobs for the unemployed youth of the country.The employment opportunities in the traditional sectorincluding the Government and the Public Sectorinstitutions, the responsibility is now passed on to theother sectors of the economy. The emphasis is nowon the entrepreneur skills of the younger generationwho would be able to generate a huge employmentopportunities. The new sectors of the economy suchas telecom, infrastructure, banking, the service sector,the agriculture, the tourism which has a tremendousscope for the hospitality industry to growtremendously, the greater opportunities, in scienceand technology advancement, the education fieldetc., were considered as a strong source ofemployment opportunities by our planners. Theexport was expected to go up very substantially givingtremendous boost for the foreign trade and the jobopportunities. The movement of goods and servicesincluding the labor and capital was also expected toprovide a big boost to the employment opportunitiesto our youth both inside as well as outside thecountry.

The populist schemes of Poverty alleviation andgeneration of rural employment through variousschemes floated from the Government for the benefitof rural areas are not a solution to the currentunemployment problem. The creation of schemessuch as Food for Work, 100 days guaranteed workare able to touch only a tip of the iceberg of the total

EMPLOYMENT GENERATION IN INDIA

employment in the country.These are temporary reliefs butnot a permanent solution.

The international rating agencieshave been giving full marks tothe Indian economy as regardstheir economic recovery duringthe last two years with thedevastating effect that thedemonetization had on theeconomy of the country. The

GST scheme introduced by the Central Governmentis also getting lot of appreciation by the InternationalAgencies and they are very confident that India alongwith China will be the economic super power in thenear future.

However, paradoxically the growth in the economy isproving a jobless growth. The majority of the Indianpopulation lives below the poverty line. We have notbeen able to ensure the equi-distribution of theeconomic prosperity. The 10% of the populationcontrols the 90% of the wealth of the country whereas90% of the population is still struggling sharingbetween them just 10% of the total wealth of thecountry. The agriculture sector is no longer an avenuefor creation of more jobs. The disparity between thepoor and the rich has multiplied. We see the numberof millionaires increasing every year. In the samebreath we also see the poor farmers are committingsuicide. The statistics show that at every half an hourone farmer commit suicide in the country. The Indianagriculture has come a long way. The country hascreated a record for ensuring food security within aperiod of 2 decades after the Independence. Itssuccess in the agriculture had become a source ofinspiration to all the under developed and developingcountries in the Asian as well as African countries inparticular the third world countries who were heavilydepending upon the alms of the colonial rulers fortheir existence. The total agriculture production isestimated to be around 220 million tonnes due tothe increase in agricultural production during the year2018. It is nearly 5% more than what it was duringthe year 2017. We have a rosy macro statistics

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SUCCESS COMES TO THOSE WHO DARE AND ACT


painting a glorious picture of our economy.

When it comes to the actual situation, the country ispassing through a serious crisis as regards thegeneration of the employment opportunities for theyounger people who come out of the educationalinstitutions every year. The unemployment is on theincrease threatening the very success of the economicstory of the country. The promise of the PrimeMinister that he is creating one crore job every yearwill have to be taken with a pinch of salt. Conflictingreports are appearing in the press and the othercommunication medias as regards the actual creationof the jobs in the country. It is reported that morethan 12 million people enter the job markets in thecountry. The potential for the jobs availability in thecountry is far less than the requirement and as suchwe add every year more than 7 million people to thebasket of unemployment threatening the popularbelief that the country is growing at faster andrecording the magic figure of GDP growth of 10%per annum. There are contradicting claims as regardsthe creation of jobs in the country. There are claimsby the independent columnist that the total jobscreated by the Government is about 15 millionwhereas the Government and policy think tank NITIAayog seem to have taken a middle path with claimsof 7 million job creation during the year.

The International Labour Organization (ILO) declaredthat unemployment rate in India will stay at 3.5percent and nearly 77 percent of employment in Indiawould be “vulnerable” indicating the uncertainty ofthe job security in the country. The Government isthus under tremendous pressure when the NDAGovernment goes for the election in the coming year.

The basic flaw in regard to the authenticity of thedata is that the source of data is ineffective. Themain source from which the Government is collectingthe data is the Employees Provident FundOrganizations – which has the figures in regard to allthose concerns which has employment of more than10 workers as the EPF is compulsory for them. Thesystematic destruction of the Employment ExchangeOffices under the Labor Department in the StateGovernments all over the country – a moretransparent agency which could provide the statistics

in regard to the employment seekers have been lost.

The extraneous threat to our workforce from thepolicies of the foreign countries in particularrestrictions to the entry into their countries by theprofessionals from the country is yet another bigchallenge to our younger generation who were ableto move outside the country and take employmentopportunities elsewhere. The protectionist policy ofthe US, UK, Australia and other countries havebecome another serious matter for the job seekersfrom our country in those countries. The US regimein the recent past has virtually put a lot of embargoabout our professionals entering into their countryfor employment opportunities.

More than 93% of the workforce is still unorganized.The organized sector is hardly about 7% of the totalworkforce in the country. As a result, the total numberof jobs created in the unorganized sector is still amystery. The concept of outsourcing, the contractualemployment etc., are now taking the main stagerather than providing of permanent employment inall sectors of the economy. There is no bondagebetween the employer and the employee and as aresult there is no commitment on the part of theworkers to remain tucked to a single organizationthroughout their lives. The Government is allergic tothe formation of the unions by the workforce in thenew sectors of the economy. The systematicvictimization of the IT and BT professionals wheneverthey attempted to form the trade unions by theManagement of the various IT companies have madeit a difficult task to the unions to enter into thecampus of IT companies.

The bigger threat in resolving the unemploymentproblem is the growth of population in an alarmingspeed. It will swallow all the progress and success ofthe Government in ensuring a reasonable rate ofgrowth of the economy as well as the GDP in thecountry. There is a need to come out with peoplemovement in tackling the issue of the growingpopulation in the country. The China is able to tacklethis issue effectively and now it is for the IndianGovernment to take appropriate action to arrest thegrowing population in the country.

WORK IS WORSHIP, DO YOUR DUTY


ndia is said to be enjoyingpopulation dividends. Is it

real? Are we utilizing thepotentials of our youthoptimally? In fact, todaytapping the potentials of ouryouth is an importantchallenge facing the country.

The youth in India is bulging.The population in the age-group of 15-34 increased from353 million in 2001 to 430million in 2011. A researchstudy conducted by IRISKnowledge Foundation incollaboration with UN HABITAT estimates thatpopulation of Indian Youth is likely to reach 464million by 2021 and then marginally decline to 458million by 2026.The present youth shares someunique characteristics like relatively bettereducation, better connection within and outside thecountry, internet connectivity and wider socialnetworking. The present generation is fortunate to have a largerplatform. The present day youth is blessed withFacebook, LinkedIn, Twitter, Blogs and TelevisionShows to be in the centre of attention. Anotherfeature of younger generation is that they are clearabout what they want to be. Basically they want toclimb up the social ladder and do not hesitate totake dare steps. In addition, they are more vocalthan previous generation.

Concerns of Today’s Indian Youth

The prevailing situation is not favourable to Indianyouth. What are their main Concerns? 1. EDUCATION: No doubt, there is a rapid growthin the number of Educational Institutions in thecountry. However, it is not uniform across the lengthand breadth of the country. Further, it is not equallyaccessible to all the sections of the society.The youthare demanding better and skill-based Education.

POTENTIAL OF INDIAN YOUTH: TODAPOTENTIAL OF INDIAN YOUTH: TODAPOTENTIAL OF INDIAN YOUTH: TODAPOTENTIAL OF INDIAN YOUTH: TODAPOTENTIAL OF INDIAN YOUTH: TODAY AND TOMORROWY AND TOMORROWY AND TOMORROWY AND TOMORROWY AND TOMORROW

They want career-orientededucation.

2. JOB:Present-day youthstruggle to get admissionin prestigious educationalinstitutions and parents spendhuge amount of money on theeducation of their children.However, the skills and educationacquired by our youth do notmatch with the job requirements.Therefore, after completion of thecourse the youth struggles to getgood jobs in formal sector in thegrowing competitive world. At the

same time, the youth cannot remain without job forlong time. He has no choice and has to take upwhatever job comes on his way. The lucky ones whoget the job are under-employed, under-paid andhave to bear longer duration of work. Inspite of some advantages, due to lack ofcommunication and other skills, the probability of ayouth remaining unemployed is much higher thanthat for an adult person especially in case of females.In fact, the youth are bearing the brunt ofunemployment problem which forces them to migrateto foreign countries. They are the first victim ofeconomic recession in the form of retrenchment

3. CORRUPTION: initially every youth desires tolead an honest and ideal life. After seeing wide-spread corruption at various levels he gets frustrated.Frustration of youth was expressed in the form ofmassive support to the recent movement againstcorruption led by Anna Hazare. In addition to this,the youth took active interest in recent election andvoted for the development of the country.

4. VALUES: In the past, age-old ethical values playeda crucial role in the life of people of India. Feedingof poor people in the houses of wealthy persons invillages was a common scene. Rich people met atleast a part of marriage expenses of poor households.Wealthy people considered that the wealth possessed

I

FORTUNE FAVOURS THE BRAVE


by them as wealth of the society and that they weremere trustee of the wealth of the society. It appears that even kings took up the constructionof huge temple complexes to encourage the skills ofsculptors and provide employment to unskilledworkers and thereby ensure food security Due tothe influence of western civilization and too muchcommercialization there is erosion in Indian valuesystem.

What are our Youth Doing?

Let us first focus our attention on educated youth.Only after coming out of educational institutions, theyouth realise that the education acquired by themdoes not fetch them a good job. They start preparingfor competitive exams conducted by variousrecruitment authorities. Many of them take regularcoaching. Recruitment is cumbersome, long-drawnand time-consuming process. The process starts withthe advertisement for vacant posts followed bywritten exams held after couple of postponementson unreasonable grounds. After a long gap theresults of exams are announced. Personal interviewsare held in a phased manner. A section of youth considers that the jobs in Indiaare not adequately remunerative and preparethemselves for jobs in advanced countries. Thismovement of educated youth to advanced countriesin search of lucrative jobs started with medicalgraduates and then spread to engineering graduatesand now to people with management skills. Luckyones get good job. Many persons migrate toadvanced countries on the pretext of higher educationonly to secure job after the education. Having landedin host country they do not hesitate to do all types ofjobs. Sometimes they are condemned to lead amechanical life. Most of them prefer to stay thereand do not mind in facing all types of hardship butare very reluctant to come back to India. In the processthey positively contribute to the development of thehost countries by providing cheap labour, which isunrecognized and unnoticed. Indian youth either knowingly or unknowinglycontribute immensely to the nation building process

of the host countries. From theoretical angle, growthrate of any economy is the sum of growth rate oflabour force and the growth rate of technology. Itmay be noted that most of the advanced countriesare experiencing stagnancy in their domesticpopulation and in the absence of inflow of our youthin those countries; the growth rate of labour forcewould be near zero which would bring down growthrate of their economy. In short, our youth instead ofparticipating in nation building process of India areactively participating in nation building process ofhost countries. This contribution of our youth isgenerally goes unnoticed. Even if it is recognised, itis not duly acknowledged Who should be blamed for this tragedy? Shouldthe blame be put on the shoulders of the youthor their parents or on insensitive politicalleaders or on complacent administrators?

What our semi-skilled youth with low level ofeducation doing? There are a good number ofpersons in towns and metropolitan cities whomanage to complete matriculation and acquire skillslike car driving. With a dream of making fast bucksthey migrate to foreign countries. Incidentally, bymigrating their social status in their native placeimproves which will fetch them good dowry. On theother hand youth, especially in border areas, whostay back and earn limited income are likely getaddicted to drugs. In fact, Punjab has become gate-way to India from Pakistan for drug smuggling. It issaid that nearly 80 per cent of families suffer fromdrug addiction. It appears that an addict spends onethousand Rupees per day on drugs. Earlier peopleconsumed liquor. Now there is a spurt in the salesof drugs..What about our uneducated and rural youth? Ininformal sector, especially in rural area, youthconstitutes disproportionate share in unemployedpersons. Due to economic and social constraintsmany of them are forced to remain in rural areasand are underemployed/ disguised unemployed.Sizeable rural youth move to urban area and withmeager earnings lead a miserable life, mostly inslum area without any basic facilities and with nomedical and educational facilities to their children.


STRONG REASONS MAKE STRONG ACTIONS

Some youth with some ambition are likely to fallprey to smugglers and traffickers, who promise themto provide job with decent income and comfortableliving conditions. Huge inflows of migrant labourand malpractices in recruitment have driven downthe market wage rate in the host countries. Theproblem of migrant labour is aggravated due to poorworking conditions and insecurity. Confiscation ofpassport, unlawful deduction from wages andadditional hours of work make the lives of migrantlabour miserable.

In short, they are being lured by unscrupulousagents and find themselves in harsh, unfriendly,undreamt environment from which it is difficult tocome out. In their own way they contribute to thegrowth of those countries which is not recognisedby any one. A good number of them meet their endand their relatives struggle to get back their bodyto their native place. They remain unsung heroes.

Can we afford to ignore this trend? Can we stopthis Movement? If yes, how can we stop? Whatis the solution to this problem? Youth have played an important role in thedevelopment of every advanced nation. Therefore,it is the duty of the parents, elders and leaders tolook into the problems of our youth and channelizetheir boundless energy for nation-building activities.Otherwise, their energy maybe dissipated in wrongdirection creating chaos in the country.Our youth,whether in India or outside must be proud of India.In this context, it is worthwhile to consider theproposal to have compulsory military training to ouryouth for a couple of years. It will also make ouryouth more disciplined which is essential for alltypes of jobs.

Governments in both origin and host countriesshould develop an efficient recruiting system andexchange regular information. The policies mustensure safe migration with freedom, dignity, equityand security. It should be made mandatory to foreignemployer to intimate Indian Embassy beforeemploying any Indian. Further, the Indian embassyshould keep track of Indians.

There is an urgent need for collection and analysis

of data of migrant labours by age and by sex.

To fight the menace of drug addiction there is a needfor opening more de-addiction centres andintensification of drug de-addiction drive.

Many self-employment and wage-employmentprogrammes have been launched in India withlimited success. For various reasons their fullpotentialities are not realised. Involvement of youthin the implementation of programmes for distributionof job-cards, ration-cards, Aadhar cards etc, alongwith Officials would reduce the leakages to a greatextent. Youth must be made to realize their powerand responsibility. Youth must be encouraged in allpossible manners to start their own business. Theyshould become entrepreneur that is job-providers andnot mere job- seekers. India has a great opportunityto meet worldwide demand for work force. It can become an international out-sourcing hub forskilled manpower. However, only 2 percent of Indianwork force has undergone skill training. We have toimpart some communication skills, a good knowledgeof English and some spiritual input. Spiritual input isnecessary to drive home the point that means are asimportant as the goals and mad rat race will notensure happiness. Our policies must attract youth likemagnet.

In Globalisation Era it is difficult and not fair to preventyouth from moving out. Let them go abroad learnand work. Let them be exposed to external world. Itwill enrich them and make them more matured. Onlythen they start appreciating the merits of our richculture. After adequate experience in foreigncountries they must be motivated to come back toIndia and contribute their might in nation buildingactivities. They should be made to realise that theyare not doing any favour to India but only partiallyrepaying their debt to their mother land. They neednot permanently remain in India. If they so desirethey must be encouraged to go abroad only to comeback to serve the country with richer experience. These measures are likely to fetch real demographicdividends instead of ending up with demographicdisaster.

Source: The Hans India

Labour Research,September-October-2018 10 MAN IS THE ARCHITECT OF HIS OWN FUTURE

SENSE, SENSATION AND SENSITIVITY

en are blessed withthe benefit of enjoying

the beauty of variouscreations of nature withtheir sensory organs, such aseyes, nose, tongue, ear andbody. We see objectsthrough our eyes, smellthrough the nose, taste foodthrough the tongue, hearthe sound through the earand feel with our bodytouch. Synchronization of the function of varioussensory organs makes a man perfect. Life wouldhave been monotonous if one could not enjoy thebeauty of nature, taste the food we consume, hearthe melody around him and feel the heat and coldin the atmosphere, through these sensory organs.Mind is an amazing mechanism that make use ofvarious sensory organs in the body wheneverrequired. Creative faculty of mind is set in motionentirely by emotion.

Among all sensory features sense of smell is mostsensitive and powerful, that resides in the same partof the brain as in the case of emotion. It is directlyconnected with our emotion than any other sense.Apart from one’s personality every person in thesociety is connected or identified with the others,through his body odour through the sweat,emanated in their body, mostly out of the nature offood one consume, oil or perfume one use. Smell isnot only a source of enjoyment but also a protectoragainst the impending danger around us that makesone to get alert. Smell also is an indicator of thequality of food one is going to consume throughaction of reflex. This reflex action also gives him thestimulus to relish the food that makes him to digestthe food fast.

Most of the living creatures on earth has got a naturalinstinct of recognizing around 1000 different smellsaround them if they are in their normal health. If

they are unable to recognizeand appreciate any smellaround them despite holdingthe object close to their nose, itonly shows some deficiency intheir system; which normallypeople may not notice. It canbe a sign of something seriousin them such as onset ofParkinson or Alzheimerdecease or due to common coldor nasal infection or polyp in

the nose. Under such circumstances we may not beable to enjoy our surroundings or the food weconsume. But one need to take it as a symptom ofan impending decease. Any physical deficiencyrelating to smell can be indentified in a nuro clinicthrough a smell identification test. Miscellaneous

Nature has provided human being with a chemistryof mind which operates in a manner similar to theprinciples of chemistry through which people areattracted each other. Body odour also makes peopleto attract or dislike each other. Certain smell canalso lead to many nostalgic moments in life. Historyalso reveals that many fragrances are created in thepast out of romances to suit to one’s lover. Manyimmortal loves also were linked to fragrance ofdifferent flowers. Jasmine always has got an estheticsmell of purity, sanctity poverty and divinity thatlinked to various holy ceremonies.

Every day we are confronted with different types ofsmells. The five million olfactory cells in our bodycan sniff out one molecule of odour causing substancein one part per trillion of air. We take about 23000breaths per day processing about 440 cubic feet ofscent laden air. Compared to man, women have gota natural instinct of identifying the smell than man.However the ability to sense varies from person toperson. According to research an average humanbeing can recognize about 10000 different smells.This also indicates the quality of one’s health.

M


WORKERS OF INDIA, UNITE

Abhay Manohar Sapre, J.Abhay Manohar Sapre, J.Abhay Manohar Sapre, J.Abhay Manohar Sapre, J.Abhay Manohar Sapre, J.

1. This appeal is filed against the final judgmentand order dated 13.08.2007 passed by the HighCourt of Judicature at Madras in W.A. No. 2675of 2002 whereby the Division Bench of the HighCourt dismissed the Writ Appeal and affirmedthe order of the Labour Court and Single Judge.2. Facts of the case lie in a narrow compass. They,however, need mention in brief infra to appreciatethe short controversy.

3. The appellant is a limited company having itsmill in Coimbatore. The appellant being anemployer applied to the Joint Commissioner ofLabour (Respondent No.3) praying in theirapplication that they be allowed to add one morenew ground namely “break in service” in Clause16 of the Chapter of Punishment in CertifiedStanding Orders in addition to the existinggrounds specified therein.

4. In other words, the appellant’s prayer was thatif any employee commits “break in service” inany year, then it should be regarded as one ofthe ground for punishment enabling the employer(appellant) to take action against such employeeunder their certified standing order. They,therefore, prayed that they may be allowed toadd this new ground in Clause 16 of the Chapterof Punishment in Certified Standing Orders.

5. On 02.04.1992 the third respondent (JointCommissioner of Labour) allowed the saidapplication of appellant and permitted them toamend their certified standing orders by adding“brake in service” as one new ground in Clause16 of the Chapter of Punishment in CertifiedStanding Orders.

6. The Workers’ Union (Respondent No.1) feltaggrieved by the order dated 02.04.1992 filed

appeal in the Labour Court. By order dated06.02.1995, the Labour Court allowing the appealand setting aside the order dated 02.04.1992 heldthat if the proposed amendment is allowed, it wouldcause immense prejudice to the rights of theworkmen and further the employer would likely tomisuse this new ground of punishment mostly fortheir benefit. It was also held that apart from thesetwo reasons, it would also defeat the object of thePayment of Gratuity Act while calculating theemployee’s continuous service as defined under thePayment of Gratuity Act which provides for differentmodes of calculation.

7. The appellant felt aggrieved of the order of theLabour Court and filed the writ petition in the HighCourt at Madras questioning therein the legality andcorrectness of the order of the Labour Court. Byorder dated 19.07.2002, the learned Single Judgedismissed the appellant’s writ petition which gaverise to filing of the intra court appeal by the appellant(employer) before the Division Bench of the HighCourt.

8. By impugned order, the Division Bench dismissedthe appeal and affirmed the order of the LabourCourt and Single Judge. It is against this order; theappellant (employer) has felt aggrieved and filedthe present special leave to appeal in this Court.

9. So the short question which arises forconsideration in this appeal is whether the Courtsbelow (Labour Court, Single Judge and the DivisionBench) were justified in rejecting the applicationfiled by the appellant (employer) to the JointCommissioner of Labour (certifying officer) seekingtherein a permission to add one more new groundi.e. “break in service” in Clause 16 of the Chapterof Punishment in Certified Standing Orders.

10. Having heard the learned counsel for the partiesand on perusal of the record of the case and the

The Management of Sri Ramnarayan Mills Ltd. Vs. Secretary,Coimbatore District Textile Workers Union (HMS) and Ors.

[Civil Appeal No.1977 of 2010]


A GOOD MAN DOES NOT ARGUE, HE WHO ARGUES IS NOT A GOOD MAN

written submissions, we find no merit in thisappeal.

11. The Division Bench dealt with this issue inPara 6 of the impugned order which reads asunder: “We have considered the above submissionof the learned counsel for the appellant. In fact,what is sought for is to include ‘break in service’as one of the punishment under Clause 16 of theStanding Orders. To say in other words, if theworkman does not come for duty, for any reason,break in service will be effected for such periodof absent.

By permitting the appellant to modify theStanding Order so as to include the break inservice as one of the punishment, in fact, willenable the appellant to exercise the power toimpose the punishment in an arbitrary manner i.e.,if an employee is punished for the absence inaccordance with the existing Standing Order,continuity of service of the employee is notdisrupted whereas, if the appellant is permittedto modify the Standing Order so as to include thebreak in service as also one of the punishment,even a half day absent from duty in a year of 12months, will give an opportunity to the appellantto take disciplinary action against an employeeconcerned at the end of the year and to impose apunishment of break in service, which will have aconsequence of depriving the employee’s right toget gratuity for that particular year.

When so many other 6 punishments have beenenumerated under Clause 16 of the said StandingOrder, there is no need to include the punishmentof break in service as one of the punishments. Infact, permitting the appellant to include ‘break inservice’ as one of the punishment, defects theobject of the Payment of Gratuity, that is to say,as per Gratuity Act, on completion of everycontinuous service of 5 years, an employee iseligible to get the gratuity. As referred above, iffor a particular period of absents, to say for a dayalso, this proposed modification enables anemployer to impose a punishment of break in

service. Consequently, for that particular year, anemployee will not get gratuity inspite of the factthat he had worked for 12 calendar months. Now,only 240 days shall be taken into account and not240 days attendance shall be taken into account.

As such, if the modification is allowed, the futureright of the employee to get a gratuity for aparticular year will get affected. Apart from this, ifan employee, for certain reasons beyond hiscontrol, was forced to be absent even for a day, hecan be imposed with the punishment of break inservice which will have consequence on his gratuity.That apart, if an employee has to be punished forthe absent as referred above; the punishment ofeither censure, reduction in rank or payment cutetc. may be imposed and continuity of service ofthat employee is not disrupted. If the appellant ispermitted to include break in service also as oneof the punishment, even for one day or half a dayabsent from duty in a year of 12 months, will givepower to the appellant to impose the punishmentof break in continuity of service in order to deprivethe employee’s right to get the gratuity for thatparticular year.

In fact, this proposed amendment is against thewelfare of the employee and as rightly held by thelearned Single Judge, besides, this can beexercised in an arbitrary manner, consequently, theemployees will be penalized. That apart, as rightlyheld by the learned Single Judge, on theappreciation of the entire materials, the LabourCourt has arrived at a factual conclusion that theamendment sought for, namely, inclusion of breakin service in Clause 16 is unreasonable and it wouldbe possible for the Management to act arbitrarily.That apart, by including the break in service as oneof the punishment, in fact, what the appellantintends to do is only to get an opportunity to imposepunishment which will have an impact in the gratuityof the employee of the concerned year.”

12. The Division Bench, in our considered opinion,rightly concluded that a “break in service” cannotbe allowed as a ground by way of punishment in

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Clause 16 of the Chapter of Punishment inCertified Standing Orders for the followingreasons:

13. Firstly, the existing grounds enumerated inClause 16 by way of punishment are sufficient totake care of any misconduct committed by anyemployee and there appears no reason to introduceone more new ground in the existing groundsspecified in Clause 16 for imposing a newpunishment.

14. Secondly, the proposed ground, if allowed,would likely to be misused by the employer againstits employees for their own benefit and detrimentalto the employees’ interest.

15. Thirdly, it would enable the employer to takeaction against its employees even in a situationwhere an employee is found absent even for a dayand such absence will be treated as “break inservice” under the Certified Standing Orders andalso under the Payment of Gratuity Act. It will,therefore, be in conflict with the definition of theexpression “continuous service” defined under thePayment of Gratuity Act which gives differentmodes of calculation for determining the

continuous service for payment of gratuity amount.

16. Fourthly, such ground will, therefore, defeatthe very object of the Payment of Gratuity Actwhich is a beneficial legislation enacted for thebenefit of the employees and lastly, it is neitherbona fide nor reasonable and nor required andhence it cannot be allowed.

17. In our opinion, we find no good ground to differwith the reasoning assigned by the Division Benchmentioned above for rejecting the applicationmade by the appellant (employer) for adding,“break in service” as a new ground for punishmentin the Certified Standing Orders. The reasonsgiven by the Division Bench, in our view, deserveto be upheld.

18. In the light of the foregoing discussion, we findno merit in this appeal. The appeal thus fails andis accordingly dismissed.

.....................J. (ABHA....................J. (ABHA....................J. (ABHA....................J. (ABHA....................J. (ABHAY MANOHAR SAPRE)Y MANOHAR SAPRE)Y MANOHAR SAPRE)Y MANOHAR SAPRE)Y MANOHAR SAPRE)..................J. (INDU MALHOTRA)..................J. (INDU MALHOTRA)..................J. (INDU MALHOTRA)..................J. (INDU MALHOTRA)..................J. (INDU MALHOTRA)

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