Labour judiciary

During the Second World War, Winston Churchill, the then Prime Minister of Britain, enquired of Lord Chancellor, the Chief Justice of Britain, to ensure that judiciary delivered equitable justice. The Chief Justice asked Churchill reasons for expressing such fear. Promptly Churchill replied that as long as people were sure of getting balanced equitable justice they would fight for their country, even in the face of against Nazi onslaught.
Labour judiciary is one of the pillars of industrial democracy in our country. The purpose of labour and industrial law and the object of industrial justice is to establish a balance between the interests of the workers and those of the owners of the industry so that harmony of industrial relations may be achieved. Perhaps, it may not be possible to strike a perfect balance because limitations with respect to the interests of either party are imposed by the existing conditions. Ludwig Teller in his famous thesis - Labour Dispute and Collective Bargaining - Volume I Page 536 has aptly remarked: "Again, industrial arbitration is more usually spoken of in connection with the adjustment of existing labour controversies, while commercial arbitration is said more often to include the disposition of controversies which may arise in the future out of agreements between the parties. Then too industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general, the creation of new obligations or modifications of old ones, while commercial arbitration generally concern itself with interpretation of existing obligations and disputes relating to existing agreements." In settling the dispute between the employers and the workmen, the functions of labour judiciary is not confined only to administration of justice in accordance with law. It can even confers the rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms or ambit of existing agreement and it can even create new rights and obligations which it considers essential for keeping industrial peace and harmony. However, Justice Mahajan of Supreme Court of India in the case of Bharat Bank Limited has remarked that when the safeguard of an appeal is not provided by law the tendency some time is to act in an arbitrary manner more like a benevolent despot. Benevolent despotism is foreign and alien to the democratic constitution and institutions. It goes without saying that labour judiciary cannot be expected to do any thing and every thing whilst dealing with labour matters. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial and labour laws and would not be open to it whilst dealing with the particular matter before it to overlook the labour laws relating to that matter as laid down either by legislature or by the superior court. Needless to mention labour decisions should be completely free from the tyranny of dogmas or the subconscious pressure of a pre-conceived notion. It is of utmost importance to understand specially in the labour judiciary that the object of establishment of labour courts and labour appellate tribunals primarily is to help, growth and progress of national economy and it is with that ultimate object in view industrial dispute and or cases should be settled and decided on the principle of fair play and justice. Temptation to be crusaders instead of adjudicators must be firmly resisted. The Supreme Court of India has rightly cautioned in 1962 Vol II LLJ 368 that in their zest to fight for their respective claims the parties may choose to ignore demands of national economy but industrial adjudication cannot.
In its report on the National Commission on Labour established in India headed by former Chief Justice Gajendragadkar of Supreme Court of India it was aptly observed as under:- "In the decision of major industrial disputes, three factors are thus involved. The interests of the employees which have received constitutional guarantees under the constitution, the interests of the employers which have received a guarantee under Article 19 and other Articles of Part III and the interests of the community at large which are so important in a welfare state. It is on these lines that industrial jurisprudence has developed." Whereas India has followed these guidelines and industry has flourished, it is just the opposite in Pakistan.
Labour judiciary should be reluctant to put any interpretation upon labour legislation, which is likely to prejudice the rights or welfare of labour. No doubt, labour legislations have been put on the statute book primarily for the purpose of redressing the balance between employers and employees. Even in the construction of provisions of welfare labour legislation, courts should adopt what is sometimes described as a beneficent rule of construction. However, it should be the endeavour of the labour judiciary to give meanings to the words, which are intended to lay down the full connotation of labour laws. The construction, however, should not justify its extension of the statute's scope beyond the contemplation of the legislature, even if the statute is remedial or beneficial or even if such construction would produce results may be highly beneficial or desirable to one side at the cost of other. Few problems in the law have given greater variety of application and conflict in results than the cases arising between the employer and employee which broadly speaking is one of the independent, entrepreneurial dealing. However, Chief Justice Lord Camden has aptly cautioned that "discretion of a judge is the law of tyrants. It is different in different cases. It is always unknown. It is different in different men. It is casual and depends upon constitution, temper and passion. In the best it is oftentimes caprice, in the worst it is very vice, folly and passion, to which human nature is liable". No doubt relation between the employer and employee is a matter of manifest and of importance. It pervades all societies, and affects the growth and security of states in the most remarkable and pregnant manner. It requires the nicest care, gives exercise to the highest moral qualities, has a large part in civil life, a larger part in domestic life, yet our conduct in it will surely be no mean proportion of the account which we shall have to render in the life that has to come. The concept of absolute discretion is alien to labour jurisprudence. Absolute discretion should not be exercised in a ruthless manner. It is more destructive of freedom than any of man's other inventions. Industrial peace and harmony may have the same meaning in the ordinary parlance, yet the concept of industrial peace is somewhat negative and restrictive. It emphasises the absence of strife and struggle. The concept of industrial harmony is positive and comprehensive and it postulates the existence of understanding, co-operation and a sense of partnership between the employers and the employees. No doubt, it is too late in the day to claim absolute freedom by employer to impose any condition, which he likes on labour. It is always open for the labour judiciary to consider the conditions of management and labour and even in appropriate cases to vary them if it is found necessary. In this the employer can justify and restrict the original condition. Labour judiciary must recognise that every citizen of this country under the Constitution is free to arrange his business in such a manner as he may be able so as to avoid regulatory and or penal consequences, so long as he does not break any law. Employers' right to exercise this option has to be recognised as is employees' rights to expect security of tenure. The concept of social justice is not narrow or one-sided. It is neither pedantic, nor should it be confined by labour judiciary to employees alone. Its sweep is comprehensive. It is founded on the basic idea of socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities. Nevertheless, in dealing with labour matters, labour judiciary should not adopt a doctrinaire approach like grant of back benefits in all cases of wrongful termination of services. Labour judiciary should refuse to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It should endeavour to resolve the competing claims of employers and employees by finding a solution which is just and fair to both the parties with the object of establishing harmony between capital and labour and good labour management relations. No doubt social justice is an integral part of labour jurisprudence. However, it would be idle for any party to suggest that labour judiciary can or should ignore the claims of social justice in dealing with labour management relations. Lord Denning has aptly remarked that justice must be routed in a confidence, and confidence is destroyed when like-minded people go away thinking. It may be mentioned that in the labour management relations, it is not only the labour and the employer whose interests are involved but the interest of the industry, society and in fact the country which is equally involved.
The Supreme Court of Pakistan has very aptly in the case of Pakistan Tobacco Company Limited pointed out the difference between ordinary litigation and labour litigation. Proceedings before the labour judiciary, however, at the same time should be consistent with view of the apex court of this country. It should make sure how far it was dipping in the pocket of the employer. Where a decision is sought to be sustained on the ground of social justice, it must be shown that judiciary had borne in mind also the interest of community. In 1956 Vol I LLJ 227, once again the Supreme Court of India has observed that wide as these powers are there are limitations to the ambit of Industrial Tribunal. These tribunals are not courts in the strict sense of the term, yet they have to discharge quasi-judicial functions. Their powers are derived from the statute that created them and they have to function within the limits imposed there and to act according to its provisions. These provisions invest them with many of the trappings of a court and deprive them of arbitrary or absolute discretion and power. They cannot act as a benevolent despot and base their conclusion on irrelevant considerations and ignore the real question that arises out of the pleadings of the parties.
Pope Leo XIII has aptly remarked: "Each needs the other; capital cannot do without labour, nor labour without capital." It may not be irrelevant to point out that in the past decade judicial development of Industrial Law has been woefully lopsided. Of late, in the name of Labour Judicial Activism, some judges have doffed their ropes by indulging in linguistic acrobatics to confuse the issues and inventing excuse for raising their own private notions of social justice. The law relating to adjudication of disciplinary action - disputes and other individual grievance is a bewildering labyrinth of confusion. The procedures evolved by the dicta of the labour judiciary are not only perplexing but also tend to create unnecessary multiplicity of protracted litigation. It is, therefore, apposite that the legislature should intervene to redress the balance which has been upset by court decisions capable of exercising more injurious influence on industrial relations which far from reducing labour litigations have increased the same. This phenomenon is noticeable especially in the cases of banks and financial institutions privatised in this country. Labour judiciary is oblivious of the fact that unconsciously it is not only causing immense harm to this unscrupulous culture in the banks, but also indirectly encouraging malpractices in banks. Labour judiciary, especially appellate forums are expected to be experienced in and appreciative of social, economic, labour and industrial problems that confront our country and society, which unfortunately are ignored altogether merely because retired judges do not realise that by going out of the way in accommodating one side at the cost of industry it is doing no service either to the office they occupy or the robe they adorn. Little do they realise that some counsels, contrary to the noble profession of law, encourage litigants to stand next to them when their cases are being pleaded with folded hands, time and again intervening and claiming that their children are starving, cannot afford school fees, aged parents have to be looked after, they are without job, not engaged in any gainful or commercial activities etc. but having performed these dramatic acts, as directed by their counsel, they leave the court room with their counsel, laughing, cracking jokes, each trying to take lead over the other boasting to show how well they performed before the Member or the Presiding Officer, and the counsel satisfied as to these acts express their view that the matter will end as desired by them. This phenomenon is common in one province more than in any other province.
Little do we realise that Labour Judiciary is one of the pillars on which the edifice of industry is erected. Labour Judiciary must ensure that cracks do not occur in this pillar or else the structure and with it the industry will collapse and thus the proverbial goose that lays the egg shall stand eliminated. Presently, institutions such as Railways and PIA are eating away the wealth of the country. Only private sector business, be it banking, sugar, textile, pharmaceutical, etc, are surviving and contributing to the revenue of our economy. It is the taxpayers' money on which these subordinate judiciary is functioning. It is not clear if industry and taxpayers have a right to claim or even inquire if taxpayers' money is being utilised properly, on institutions or spent merely to create jobs for retired personnel at the cost of taxpayers' money. This is no service either to religion, country or the office our subordinate labour judiciary occupy.
Reference to neighbouring India has been made time and again as both countries bear similar demographic, economic and social indicators. India is world's biggest democracy. It is predicted as a global power to outpace US within a couple of decades. As compared to our country, it has far more stronger democratic and legal system in place. Labour judiciary in India does not decide cases out of goodness of heart. It deserves all kudos for ensuring that decisions are neither given on sympathetic consideration or based on misplaced sympathy, but strictly according to law and evidence on record. Labour judiciary is certainly showing cracks. Hope that the pillar does not collapse on which the edifice of our economy and labour-management relations are erected.