CHAPTER – 1

INTRODUCTION

1.1 Introduction to Labour

Work or labour (or labor in American English) is the intentional

activity people perform to support the needs and wants of themselves, others, or a
wider community.1 In the context of economics, work can be viewed as the human
activity that contributes (along with other factors of production) towards the goods
and services within an economy.2

Work is fundamental to all societies but can vary widely within and
between them, from gathering natural resources by hand to operating complex
technologies that substitute for physical or even mental effort by many human
beings. All but the simplest tasks also require specific skills, equipment or tools,
and other resources, such as material for manufacturing goods. Cultures and
individuals across history have expressed a wide range of attitudes towards work.
Outside of any specific process or industry, humanity has developed a variety of
institutions for situating work in society. As humans are diurnal, they work mainly
during the day.3

Besides objective differences, one culture may organize or

attach social status to work roles differently from another. Throughout history, work
has been intimately connected with other aspects of society and politics, such as
power, class, tradition, rights, and privileges. Accordingly, the division of labour is

1
James, Paul; O’Brien, Robert (2006). Globalization and Economy, Vol. 4: Globalizing Labour.
London: Sage Publications.
2
Torres, Raymond, ed. (2013). World of work report 2013: Repairing the economic and social
fabric (PDF). Geneva: International Labour Organisation, International Institute for Labour
Studies. ISBN 978-9292510183.
3
Freeman, Richard (2010-03-05). "What Really Ails Europe (and America): The Doubling of the
Global Workforce". The Globalist. Retrieved 2013-07-06.

1
a prominent topic across the social sciences as both an abstract concept and a
characteristic of individual cultures.

Some people have also engaged in critique of work and expressed a

wish to abolish it, e.g. Paul Lafargue in his book The Right to Be Lazy.4 Related
terms include occupation and job; related concepts are job title and profession.

Work can take many different forms, as varied as the environments,

tools, skills, goals, and institutions around a worker. This term refers to the general
activity of performing tasks, whether they are paid or unpaid, formal or informal.
Work encompasses all types of productive activities, including employment,
household chores, volunteering, and creative pursuits. It is a broad term that
encompasses any effort or activity directed towards achieving a particular goal.

Because sustained effort is a necessary part of many human

activities, what qualifies as work is often a matter of context. Specialization is one
common feature that distinguishes work from other activities. For example,
a sport is a job for a professional athlete who earns their livelihood from it, but
a hobby for someone playing for fun in their community. An element of
advance planning or expectation is also common, such as when
a paramedic provides medical care while on duty and fully equipped rather than
performing first aid off-duty as a bystander in an emergency. Self-care and basic
habits like personal grooming are also not typically considered work.5

While a later gift, trade, or payment may retroactively affirm an

activity as productive, this can exclude work like volunteering or activities within
a family setting, like parenting or housekeeping. In some cases, the distinction
between work and other activities is simply a matter of common sense within a

4
Dobbs, Richard; Barton, Dominic; Madgavkar, Anu; Labaye, Eric; Manyika, James; Roxburgh,
Charles; Lund, Susan; Madhav, Siddarth (June 2012). "The world at work: Jobs, pay and skills for
3.5 billion people". McKinsey Global Institute.
5
World Economic Outlook Chapter 5: The Globalization of Labor (PDF). International Monetary
Fund. 2007. ISBN 978-0511760594.

2
community. However, an alternative view is that labeling any activity as work is
somewhat subjective, as Mark Twain expressed in the "whitewashed fence" scene
of The Adventures of Tom Sawyer.6

Humans have varied their work habits and attitudes over

time. Hunter-gatherer societies vary their "work" intensity according to the seasonal
availability of plants and the periodic migration of prey animals. The development
of agriculture led to more sustained work practices, but work still changed with the
seasons, with intense sustained effort during harvests (for example) alternating with
less focused periods such as winters. In the early modern era, Protestantism and
proto-capitalism emphasized the moral and personal advantages of hard work.

The periodic re-invention of slavery encouraged more consistent

work activity in the working class, and capitalist industrialization intensified
demands on workers to keep up with the pace of machines. Restrictions on the hours
of work and the ages of workers followed, with worker demands for time off
increasing, but modern office work retains traces of expectations of sustained,
concentrated work, even in affluent societies.

As living beings, humans require a baseline of good

health, nutrition, rest, and other physical needs in order to reliably exert themselves.
This is particularly true of physical labor that places direct demands on the body,
but even largely mental work can cause stress from problems like long hours,
excessive demands, or a hostile workplace.

Particularly intense forms of manual labor often lead workers to

develop physical strength necessary for their job. However, this activity does not
necessarily improve a worker's overall physical fitness like exercise, due to
problems like overwork or a small set of repetitive motions.[8] In these physical
jobs, maintaining good posture or movements with proper technique is also a
crucial skill for avoiding injury. Ironically, white-collar workers who

6
"work | Definition, History, & Examples". Britannica. Retrieved 2022-07-06.

3
are sedentary throughout the workday may also suffer from long-term health
problems due to a lack of physical activity.

Learning the necessary skills for work is often a complex process in

its own right, requiring intentional training. In traditional societies, know-how for
different tasks can be passed to each new generation through oral tradition and
working under adult guidance. For work that is more specialized and technically
complex, however, a more formal system of education is usually necessary. A
complete curriculum ensures that a worker in training has some exposure to all
major aspects of their specialty, in both theory and practice.

Tool use has been a central aspect of human evolution and is also an
essential feature of work. Even in technologically advanced societies, many
workers' toolsets still include a number of smaller hand-tools, designed to be held
and operated by a single person, often without supplementary power. This is
especially true when tasks can be handled by one or a few workers, do not require
significant physical power, and are somewhat self-paced, like in many services
or handicraft manufacturing.7

For other tasks needing large amounts of power, such as in

the construction industry, or involving a highly-repetitive set of simple actions, like
in mass manufacturing, complex machines can carry out much of the effort. The
workers present will focus on more complex tasks, operating controls, or
performing maintenance. Over several millennia, invention, scientific discovery,
and engineering principles have allowed humans to proceed from creating simple
machines that merely redirect or amplify force, through engines for harnessing
supplementary power sources, to today's complex, regulated systems that automate
many steps within a work process.

In the 20th century, the development of electronics and new

mathematical insights led to the creation and widespread adoption of fast, general-

7
"Unusual and Bizarre jobs around the world". Blogristan. 20 September 2023.

4
purpose computers. Just as mechanization can substitute for the physical labor of
many human beings, computers allow for the partial automation of mental work
previously carried out by human workers, such as calculations, document
transcription, and basic customer service requests. Research and development of
related technologies like machine learning and robotics continues into the 21st
century.

Beyond tools and machines used to actively perform tasks, workers

benefit when other passive elements of their work and environment
are designed properly. This includes everything from personal items
like workwear and safety gear to features of the workspace itself like furniture,
lighting, air quality, and even the underlying architecture.8

One of the most visible signs of the process of globalisation is the

increase in migratory flows between countries. In an increasingly integrated world,
in addition to goods, services, ideas and capital, people cross national borders,
seeking what they are denied in their own countries on foreign soils. However, the
mobility of people is taking place in an international regulatory context that is
limited and fragmented and that gives ample room for individual countries (mainly
recipient ones) to impose their national choices and policies. In most cases, those
policies are restrictive when it comes to labour immigration, especially with regards
to unskilled workers. In this context, the migratory phenomenon seems to be
frequently associated with dramatic experiences that shock public opinion: with
people risking their lives in sea crossings in flimsy boats, crossing borders strapped
to the chassis of cars, stacked up between lorry loads of goods or hidden in the
fuselage of planes.

The emotional nature of this type of news frequently leads us to

forget the basic fact that most humans do not move from where they are born
(Strubhaar, 2000). Only a minority of people migrate. The idea, therefore, that if we

8
Holtermann A; Hansen JV; Burr H; Søgaard K; Sjøgaard G (1 April 2011). "The health paradox of
occupational and leisure-time physical activity". British Journal of Sports Medicine.

5
don’t block borders, a massive wave of migration will take place – a kind of
“avalanche” of the world’s southern population – is both false and prejudiced. Not
even the European Union, which has substantially dismantled migratory restrictions
between members, has experienced such a wave of migration. In fact, according to
the United Nations, there were about 232 million international migrants in 2013. In
relative terms, this corresponds to over 3.2 per cent of the world population. The
percentage does not seem exceptionally high, especially when compared to the
proportion of other cross-border economic transactions.

However, the social and political relevance of migration goes

beyond numbers: migration involves people – not only production factors - social
agents that have rights, motivations and personal plans. As a consequence,
international migration has become a powerful force of social change and cultural
interaction in the current world. Moreover, the fact that people can more freely
choose their place of residence and work widens the range of human capacities and
freedoms (Nussbaum, 2000). When suitably regulated, migration can potentially
improve the efficiency and wellbeing of the overall international economic system,
as both theoretical and empirical studies have confirmed. History shows, moreover,
that migration can, in certain circumstances, be an important force in correcting
international inequalities, actually reducing international wage differences between
host and home countries (O’Rourke and Williamson, 1999; Hatton and Williamson,
1999 and 2005).9

Aside from this global effect, migration is also an effective, although

notably selective, means of increasing the possibilities for individuals to better
themselves, improving individual income, health, education and living conditions.
It is, therefore, an important development factor, especially if we believe that people
(not just countries) matter (Clemens, 2010; Pritchett, 2006). Of course, migration
can entail costs, both for the countries of origin (due to the breaking of family

9
A migrant can be considered a person born in a country different from that in which she lives; or,
alternatively, a migrant can be a person of a different nationality from the country in which she lives.
Both concepts are used in specialist literature.

6
structures or the loss of human capital, for example), as well as for the recipient
countries (increasing the cost of social policy or reducing native wages, for
example). Furthermore, in certain conditions, when emigration becomes a
widespread and intensive phenomenon,10 it can feed a vicious circle that promotes
a regressive dynamic of depopulation and the abandonment of productive activities
in migrants’ communities of origin; or it can feed aggressive reactions in host
countries. All these costs need to be considered and, to the extent possible,
minimised, through adequate policies both in countries of origin and in host
countries.

The restrictive tone adopted towards immigration contrasts with the

increasing liberalisation of other economic flows. This contrast illustrates the
unbalanced nature of the globalisation process currently under way, which is an
obstacle for a more complete exploitation of the benefits of migration. Furthermore,
the restrictive tone with which immigration is regulated is contrary to the need for
migrant labour in developed countries, given the countries’ stagnant demographics
and ageing populations; and it conflicts with the pressure on young people to search
for employment and personal progress in developing countries. However, the gap
between the strong forces that drive migration and the restrictive regulatory
response to that phenomenon has led to large numbers of immigrants living illegally
in their host countries. This has costs not only for the immigrants and their families,
but also for the functioning of the society in which they live.11

The crisis has only worsened the vulnerable situation of many

groups of migrants. The economic downturn has led to increased unemployment
among migrants, above and beyond that of the native population, stricter conditions
for new residents in countries hit by the crisis and a containment – albeit a limited
one – in remittances that migrants send to their families. In addition, and this is the

10
For these purposes, a migrant is considered to be anyone who was born in a country different from
the one in which he or she currently lives.
11
A similar, though smaller, phenomenon was produced as a result of the breakups of
Czechoslovakia and Yugoslavia.

7
most worrying effect, the crisis has stirred up unease about immigration, causing
discriminatory and xenophobic reactions even in countries with well-established
democracies. The importance of migration and the aggravation of the conditions in
which it is produced suggest the need to regulate the phenomenon in a coherent way
internationally. A response is needed that involves countries managing migratory
flows in an orderly and realistic way. Initiatives undertaken to date in this field have
had a very limited success.

The reasons for this relative failure are based on conflicting interests
towards migration not only between social groups within countries but also between
home and host countries. Nevertheless, there is a consensus that more adequate
governance of migratory processes could increase the positive effects (and reduce
the negative effects) of migration, sharing its benefits more fairly and guaranteeing
the rights of those involved more effectively. In the pages that follow the current
regulatory framework will be analysed. The chapter will be divided into five
sections in addition to this introduction. The second section will present data on
migration and we will discuss the impact of migration in terms of the overall
wellbeing of the international system; the third section will look at the regulatory
and institutional framework governing international migration; the fourth section
will explore the interests behind the various sectors affected by migration and will
discuss the possibility of a strategic balance in this context; the fifth section presents
some proposals for establishing a framework of global rules to maximise the
benefits (and reduce the negative effects) of migration; and finally, the sixth section
will present some concluding comments.

8
 CHAPTER – 2

GLOBAL MOBILITY OF LABOUR

2.1 Global Workforce

Global workforce refers to the international labor pool of workers,

including those employed by multinational companies and connected through a
global system of networking and production, foreign workers, transient migrant
workers, remote workers, those in export-oriented employment, contingent
workforce or other precarious work.12 As of 2012, the global labor pool consisted
of approximately 3 billion workers, around 200 million unemployed.13

The global workforce, or international labor pool, reflects a new

international division of labor that has been emerging since the late 1970s in the
wake of other forces of globalization. The global economic factors driving the rise
of multinational corporations namely, cross border movement of goods, services,
technology and capital are changing ways of thinking about labor and the structure
of today's workforce. With roots in the social processes surrounding the shift
to standardization and industrialization, post-industrial society in the Western
world has been accompanied by industrialization in other parts of the world,
particularly in Asia. As industrialization takes hold worldwide and more cultures
move away from traditional practices in respect to work and labor, the ways in
which employers think about and utilize labor are changing. Usually, barriers come
into play such as different laws.

The global supply of labor almost doubled in absolute numbers

between the 1980s and early 2000s, with half of that growth coming from Asia.[3] At
the same time, the rate at which new workers entered the workforce in the Western

12
James, Paul; O’Brien, Robert (2006). Globalization and Economy, Vol. 4: Globalizing Labour.
London: Sage Publications.
13
Torres, Raymond, ed. (2013). World of work report 2013: Repairing the economic and social
fabric (PDF). Geneva: International Labour Organisation, International Institute for Labour
Studies. ISBN 978-9292510183.

9
world began to decline. The growing pool of global labor is accessed by employers
in more advanced economies through various methods, including imports of
goods, offshoring of production, and immigration.[4] Global labor arbitrage, the
practice of accessing the lowest-cost workers from all parts of the world, is partly a
result of this enormous growth in the workforce. While most of the absolute
increase in this global labor supply consisted of less-educated workers (those
without higher education), the relative supply of workers with higher education
increased by about 50 percent during the same period. From 1980 to 2010, the
global workforce grew from 1.2 to 2.9 billion people. According to a 2012 report
by the McKinsey Global Institute, this was caused mostly by developing nations,
where there was a "farm to factory" transition. Non-farming jobs grew from 54
percent in 1980 to almost 73 percent in 2010. This industrialization took an
estimated 620 million people out of poverty and contributed to the economic
development of China, India and others. The Institute estimates that increased
exports in developing countries contribute to one-fifth of non-farm jobs in those
nations and that immigrants from developing countries contributed to 40 percent of
the workforce in advanced ones. By 2008 foreign-born workers accounted for 17
percent of all STEM (science, technology, engineering and math) positions in the
United States.14

Employment is growing fastest in emerging and developing

economies. Over the past 5 years, the incidence of long-term unemployment (the
share of unemployed persons out of work for 12 months or more) has increased
60% in the advanced and developing economies for which data exist. Global
unemployment is expected to approach 208 million in 2015, compared with slightly
over 200 million in 2012.

From January 2012 to January 2013, Italy experienced the largest

increase in its unemployment rate (+2.1 percentage points), followed by the

14
Dobbs, Richard; Barton, Dominic; Madgavkar, Anu; Labaye, Eric; Manyika, James; Roxburgh,
Charles; Lund, Susan; Madhav, Siddarth (June 2012). "The world at work: Jobs, pay and skills for
3.5 billion people". McKinsey Global Institute.

10
Netherlands (+1.0 percentage point), and France (+0.6 percentage point). Over that
same period, Canada experienced the largest decrease in its unemployment rate
(−0.5 percentage points), followed by the United States (−0.4 percentage point).

The number of people employed in precarious work (also called

"vulnerable employment" employment that is poorly paid, insecure, unprotected,
and cannot support a household has increased dramatically in recent decades. This
includes Part-time jobs, self-employment or freelancers, homeworkers, fixed-term
or temporary work, on-call work, and other contingent workforce jobs.

The movement of individuals across national, regional, cultural, or

linguistic boundaries has been referred to as "global mobility." This global
workforce mobility impacts an employer's ability to provide goods or services to
users and consumers.15 Management theory attempts to address these movements
of globally mobile individuals ranging from business expatriates to more recently
identified groups such as self-initiated expatriates, international business travelers,
international commuters, and "flexpatriates" (short-term assignees and international
commuters).16

Movement of people across national borders is becoming

increasingly common. Traditionally, this has been described in terms of push and
pull forces that drive migrant workers and immigrant laborers toward more
developed countries. However, not all labor mobility17 is outward movement
toward more advanced economies. An increasing number of individuals move to

15
Selmer, J., J. Lauring and T. Bjerregaard (1015). "Global Mobility". In Su Mi Dahlgaard-Park
(ed.). Encyclopedia of Quality and the Service Economy. Vol. 1. Sage. pp. 255–
57. ISBN 9781452256726.
16
Makela, L., K. Sarenpaa and Y. McNulty (2016). "Flexpatriates, short-term assignees and
international commuters". In McNulty Y.; J. Selmer (eds.). The Research Handbook of Expatriates
(Forthcoming). Edward Elgar.
17
Andresen, M.; et al. (2014). "Addressing international mobility confusion – developing definitions
and differentiations for self-initiated and assigned expatriates as well as migrants". The International
Journal of Human Resource Management.

11
less developed countries to provide new expertise 18 or return their expertise to
their country of origin. This includes a return movement or repatriation of
internationally relocated individuals such as immigrants, refugees,
sojourners, retirees, military personnel, international students, or other
expatriates. Such movements of people may influence interstate relationships
concerning politics, economics and culture. Thus, global workforce mobility
research is relevant to both host and home country policies. From a focus on longer-
term and assigned expatriation, current research is focusing on the drivers and
dynamics of a range of new alternative forms of global mobility in the
workforce. Reviews on global workforce mobility have been recently published
by Caligiuri and Bonache, and Collings and Sheeran.19

2.2 Global Labour Mobility

Global Labour mobility consists of changes in the location of

workers both across physical space (geographic mobility) and across a set of jobs
(occupational mobility). Geographic mobility can be further subdivided into short-
distance and long-distance moves, as well as into voluntary and coerced migration.
Occupational mobility can be lateral (within a broad class of jobs similar in
socioeconomic status) or vertical (from one job to a better or worse job). The
availability of large, nationally-representative longitudinal surveys in the late
twentieth century has made it possible to measure the extent of mobility in all these
dimensions, and how they are related, in several developed economies. Our
understanding of the extent of labour mobility through history has been enhanced
by work conducted since the 1970s in which the careers of individual workers are
reconstructed by locating them in censuses and census-like enumerations (city
directories, tax lists, population registers) at successive dates. At the aggregate
level, labour mobility conveys important economic benefits. The reallocation of

18
"Global Mobility Journeys (GMJ): Global Mobility HR First". Global Mobility Journeys.
Retrieved 2022-10-15.
19
Caligiuri, Paula; Bonache, Jaime (2016-01-01). "Evolving and enduring challenges in global
mobility". Journal of World Business. 51 (1): 127–141. doi:10.1016/j.jwb.2015.10.001. ISSN 1090-
9516.

12
workers across regions permits the exploitation of complementary resources as they
are discovered in new places, while reallocation across sectors makes possible the
use of new technologies and the growth of new industries. At the individual level,
mobility allows for improvements in the economic circumstances of those whose
skills or aspirations20 are a poor match for the job or location in which they find
themselves. The impact of labour mobility extends well beyond these economic
considerations, however. The ability of fluid U.S. labour markets to deter labour
radicalization has been recognized by Karl Marx, Selig Perlman, and Stephan
Thernstrom. Since the work of Frederick Jackson Turner more than a century ago,
scholars have debated the role of the frontier in forging a particularly American
political economy in the U.S. Sociologists have examined the impact of mobility on
the operation of communities and interpersonal relationships, and political scientists
have considered how mobility effects political participation and coalition
formation.

Geographic labor mobility indicates the relative ease or difficulty

that workers confront if they want or need to relocate to find better jobs.

Several factors determine geographic labor mobility, including the

ease of movement and migration and the economic incentives to relocate. Physical,
geographic, and political barriers to movement are key factors that can make
moving more difficult.

A region's size and its job opportunities in part determine geographic

labor mobility. At the personal level, however, factors such as family situation,
housing availability, local infrastructure, and educational resources affect
geographic labor mobility.

An economy's level of trade is also a direct factor in the geographic

labor mobility of its workforce. For example, increasing domestic and international

20
Sheeran (2021-05-06). "Research insights: Global mobility in a post-covid world". The Irish
Journal of Management (in German). 39 (2): 77–84. doi:10.2478/ijm-2020-
0002. S2CID 234345248.

13
trade requires that corporate offices and other support structures be opened in a
number of locations, increasing job opportunities in these locations.

2.3 Direct Consequences of Migration

There is an a priori expectation that people, unless forced by

violence or victimised by criminal syndicates, would only move if they can improve
their well-being or welfare. It is, thus, widely taken for granted that migration,
internal and especially international, leads to positive changes for the migrants, even
taking into account the fact that there are instances of exploitation and
discrimination. Most empirical research indicates that migrants generally “gain”
from moving (Clemens, 2010). Country-level studies based on comparing incomes
of migrants before and after migration invariably show significant improvements in
migrants’ conditions, whether this is in terms of earnings, consumption, housing, or
children’s education.21 There may be contradictory effects on household income,
where departure of a member reduces labour and leads to a decline in farm output,
but this is counterbalanced by remittances received.22 The gains in earning power
of emigrants to other countries, especially to the more developed ones, are well
documented. These gains were captured by studies of migrant assimilation in the
receiving countries, as well as by more recent investigations in origin countries on
the impact of migrants’ remittances on the welfare of families left behind.

We first look at the evidence on the direct impact of internal

migration on the migrants and their families. One recent study in Bolivia found that
workers, even with only 5 years of schooling, who moved from the countryside to
the cities, experienced more than a 4 fold increase in income (Molina & Yanez,
2009).

21
Most empirical studies rely on general-purpose surveys like household income and expenditure
surveys, which may provide information on remittances and incomes, and expenditures for
consumption, housing, education, and health, but they do not contain leads to other consequences
that are harder to quantify.
22
Taylor and Rozelle (2003) found that farm output declined in rural China, but remittances
increased per capita household income by between 14% and 63%.

14
 In spite of the rich literature on rural-urban migration, there are
relatively few studies making cross-country comparisons of impacts on migrants.
With a view to filling this gap, the UNDP commissioned studies seeking to establish
a link, if any, between internal mobility and level of human development.23 One of
these studies took a sample of 16 developing countries and calculated the Human
Development Index (HDI) for internal migrants and non-migrants.24

Harttgen and Klasen (2009), who undertook the study, computed the
three basic dimensions of HDI – life expectancy, education, and per capita GDP –
and the overall HDI rating for different population sub-groups. They found that
differences in human development between internal migrants and non-migrants
within countries could be substantial, although generally much smaller than
differences in human development by income groups. Internal migrants generally
show a higher human development than non-migrants.

Of the 16 countries, 14 showed a higher value of the HDI for internal

migrants than for non-migrants. The largest effect on the overall HDI index comes
from the GDP index and the lowest effect comes from the life expectancy index.
Disaggregating the analysis by urban and rural areas they found that urban internal
migrants are better off than urban non-migrants and rural migrants are better off
than rural nonmigrants. Guatemala and Zambia were the only countries that had
higher indices for non-migrants compared to migrants. In both countries, per capita
incomes and adult literacy rates for non-migrants are higher than for migrants, but
these may have to be viewed in context very specific to the two countries.25

Based on the general findings of the study, the authors are careful to
point out that the method they used is susceptible to selection bias, since the internal

23
For a complete list of commissioned studies go to
24
The HDI index was developed by the UNDP in order to take into account, in addition to GDP per
capita, other parameters of development including health and life expectancy, literacy and education,
standard of living (e.g. access to potable water), employment, gender equality, political participation,
and power over resources.
25
In these cases, migration was forced on people due to violent civil wars.

15
migrants constitute a non-random sample of the population. The people who
migrate may have characteristics which, had they stayed in their usual residence,
also performed well in the index. Empirical investigations into the impact of
migration pose special challenges for a number of reasons. Migration is a dynamic
process involving actors who are very likely self-selected: movers are more
ambitious, more willing to take risks, and have better skills and abilities than non-
movers. These are referred to as “unobserved variables” that are impossible to
control for if one has to work with crosssectional data to compare certain observed
parameters on migrants with those on non-migrants at one point in time. Ideally,
one should be able to isolate the impact of the act of “moving” from other variables
by looking at changes in the situation of the same individual before and after
migrating, and comparing them with “stayers” with the same observable
characteristics. Researchers rarely have the option of using experimental or
longitudinal data, which would allow one to follow the same sample units over a
long enough period to assess changes. The closest one gets is to work with panel
data in general-purposesurveys specially constructed to show changes over time.9
In Canada, studies on the impact of internal migration have benefited from the
availability of panel data extracted from the Longitudinal Administrative Data
(LAD) based on individual tax returns over many years (Bernard, Finnie, and St.
Jean, 2008; see also Statistics Canada, n.d.).

The findings on the positive impact of internal migration on the

migrants are consistent with those found in Canada using LAD. Several studies
show that many, especially youth, move to richer provinces where wages and
salaries are much higher than in their places of birth (see Coulombe, 2006; Finnie,
2001). According to Bernard et al. (2008), migration is driven largely by economic
opportunities, as evidenced by the fact that the two richest provinces, Ontario and
Alberta, are preferred destinations. They found that male migrants, on average,
experienced an earnings growth of 15% from the year prior to migration to the year
following migration, compared with 8% for non-migrants. The growth in earnings
among younger migrants was significantly higher than for older groups, suggesting

16
that age matters in integrating successfully in the labour market. Finnie (2001) also
cites the work of Osberg, Gordon, and Lin (1994), who based their investigation on
labour market activity surveys (LMAS) data for the 1986 to 1987 period and found
that males who moved from one region (not province) to another had significantly
greater 1 year increases in earnings than did non-migrants (22.8% versus 9.0%),
while female movers had only slightly greater increases compared to female non-
migrants (15.0% versus 13.2%).

Their results point to sizable returns to migration for men, but only
marginal gains for women. No cross-country comparisons of the impact of
remittances from internal migrants was found, but in China, a cross-sectional study
of rural households by Zhu, Wu, Du, and Cai (2012) found that the marginal
propensity to save out of remittances is well below half of that out of other sources
of incomes. The authors claim that other recent studies in China also found no link
between migration and productive investment.

2.4 Workers Moving to Where They Can Be More Productive

Because of differences in labour productivity among sectors,

transfers of labour from less to more productive sectors should lead to higher overall
growth of the economy. There are economy-wide gains when markets are not
segregated and labour is not restrained from moving to where it can earn higher
wages. Mobility of labour allows producers to respond to the market for new
products and services or to adopt and apply new technologies. A 2005 World Bank
study in China found that moving 5% of labour out of agriculture is associated with
a 3.3% increase in GDP, and moving 5% of rural labour to urban areas is associated
with an average 2.5% increase in GDP. Gains are much higher if the reallocation of
labour is to western and central regions compared to the eastern and northeastern
regions. Paci, Tiongson, Walewski, Liwinski, and Stoilkova (2007) illustrate how
transfers of capital and of labour both serve as adjustment mechanisms when growth
is concentrated in certain regions, and where governments intervene by
redistributing tax revenues through its expenditure programs. Adjustments take the

17
form of changes in the flow and wages of workers and flow of capital. How much
of the adjustments will take the form of migration decisions of workers or location
decisions of firms will depend on government policies (public services, the
availability of land, cost of housing and transport) and, for the firms, on the
technology they use, the source of raw materials, proximity to markets, and other
economies of agglomeration. Governments seek to achieve balanced development
throughout their territories but this is seldom attained because of the unbalanced
distribution of natural resources like minerals and fertile soil, geographical26
characteristics that favour certain areas for harbours, as well as mistaken economic
and social policies. Through the way it designs its tax policies and the priorities it
sets for spending tax revenues, governments are increasingly playing the lead role
in influencing decisions of workers and enterprises. A World Bank study of internal
migration in Central Europe and Baltic countries identified a number of areas where
policy may be needed in order to enhance labour mobility (Paci et al., 2007). These
are:

1. Encouraging commuting (rather than migration) by reducing the transport

costs of commuting in terms of money and time. This includes
improvements in infrastructure (e.g., roads, railways), as well as enhanced
efficiency of the market for transport services via a combination of private
provision and public regulation.
2. Improving availability of housing, especially rental housing, for workers on
temporary contracts and their families.
3. Investing in education and lifelong learning, which may facilitate the
adjustment process because workers acquire the necessary skills to find jobs
in more dynamic regions and move away from lagging parts of the country.
4. Enhancing the flexibility in labor markets by facilitating the flow of labor
from lagging regions to booming regions by: (a) ensuring that workers have
the skills required for the newly created jobs, and (b) lowering the monetary

26
Freeman, Richard (2010-03-05). "What Really Ails Europe (and America): The Doubling of the
Global Workforce". The Globalist. Retrieved 2013-07-06.

18
 and time costs of commuting. For those left behind in lagging regions, a
policy package designed to support job creation, encourage capital to move
into the area, and enhance productivity is critical. Within the EU8 countries,
policy measures designed to promote wage flexibility in local labor markets
- such as through minimum wages differentiated by age or region, and
decentralized wage bargaining systems - are a critical component of this
package.
5. Ensuring that social protection does not inhibit mobility. For example,
generous unemployment and welfare benefits may serve to dampen labor
mobility by reducing unemployed workers’ incentives to look for
employment and raising their reservation wages.

The long-term impact of migration on origin communities,

especially when those who move out are usually younger, better educated, more
skilled, and more enterprising members, has received scant attention in the
literature. Emigration may starve origin communities of the very people needed to
improve the local economy. Remittances from migrants will finance increased
consumption levels, but would not necessarily lead to increasing productive
capacity since this depends on human resources. If migration is to improve
economic conditions in origin areas, remittances must do more than make up for
the loss in productivity resulting from the departure of workers. Some must also go
into investments in productive assets.

2.5 Greater Gains from Moving Across Borders

Mendola (2008) found that wealthier rural households that were able
to engage in international migration were more likely than others to employ modern
farming technology and raise output. Poorer households that were only able to
engage in internal migration were unable to do the same and were stuck with low-
productivity technology. How much do people gain by moving across borders?
Ortega (cited in UNDP, 2009) estimated that migrants who came from countries
rated as having low HDI gained the most by moving to an OECD country (as much

19
as US $13,736 in annual income). As to be expected, those who moved from
countries already rated high in HDI did not gain very much by moving (difference
in annual income of only US $2,480).

The gain, on average, for those moving from a medium HDI country
to an OECD country is about 4 times such as the migrant workers in the US. These
comparisons will have to be interpreted with caution due to the fact that
unobservable factors may be positively correlated with migration. Ortega used an
estimation procedure that sought to make the subject populations more comparable.
The degree to which migrants are assimilated in host countries is usually based on
how their incomes approximate the national average. There are already many
surveys of the literature on the assimilation of migrants in most OECD countries
(Borjas, 1993; Chiswick & Miller, 1992; Dustmann, 1997; Dustmann & Fabbri,
2005; Dustmann & von Soest, 2002). Studies on how permanent immigrants in the
US and Canada fared in the labour market all tended to show that over time, after
acquiring language skills and local knowledge, most become assimilated (see
Aydemir & Sweetman, 2007; Card, DiNardo, & Estes, 1998; Walters, Phythian, &
Anisef, 2007). As expected, education is a key aspect of integration and
occupational mobility in the host country.

For example, those who are highly skilled, such as Indian software
engineers, immediately benefited from relocating, even with temporary visas to the
US, where wages are more than 3 times what they received at home (Commander,
Chanda, Kangasniemi, & Winters, 2008). What has received less attention is
identifying which types of assimilation policies bring about faster convergence and
how. Few assessments have been done, for instance, on the effectiveness of
language training in improving job searches and earnings. In their study of
immigrants in Sweden, Aslund and Rooth (2007) suggested that earnings
assimilation depends on the economic conditions that immigrants face when

20
entering the country. For the US and Canada, the evidence on this is still ambiguous
(Chiswick & Miller, 1992).27

2.6 Macro Impacts of Migration

For many developing countries, migrants’ remittances are the main

source of foreign exchange and represent a substantial proportion of their GNP. The
World Bank (2011) estimates that global remittances received by developing
countries have already reached a total of US $351 billion in 2011. Aside from
offsetting balance of payments deficits, remittances may help reduce poverty
directly by lifting many recipient households above the poverty line and indirectly
through the effect of increased consumption or investments in the whole economy.
Other indirect effects, such as easing capital constraints and reducing some
investment risks associated with exchange rate instability, are cited in the literature.
Moreover, remittances are now recognised as a more stable source of foreign
exchange than private capital flows and have been noted to display an anti-cyclical
character (Chami, Fullenkamp, & Jahjah, 2005; Gupta, 2005). One of the early
studies on remittances and growth was carried out in Greece during the 1970s by
Glytsos (1993), who estimated that a $1 million increase in inflows raised the Greek
GDP by US $1.7 million.

The relationship between remittances and economic growth has been

extremely difficult to prove and has spawned a lively debate among economists.
One of the issues is the likelihood of two-way causality between remittances and
growth. While remittances may stimulate growth, it is also often the case that low
economic growth leads more people to emigrate. This leads to more inflows of
remittances. According to an International Monetary Fund (IMF) team that recently
investigated the issue and reviewed the methods and findings of previous studies,
there is still no agreement on how to resolve the problem of endogeneity (see
Barajas, Chami, Fullenkamp, Gapen, & Montiel, 2009). The complexities involved

27
"Moving back to America: the dwindling allure of building factories offshore". The Economist.
12 May 2011. Retrieved 8 July 2013.

21
are many, ranging from the fact that growth of the remittance receiving country is
affected by factors such as trade with the migration destination country, to problems
with specifying appropriate instrumental variables and control variables, to
questions about the reliability of remittance data. Earlier studies, some by the World
Bank and others by independent scholars, arrived at different conclusions: some
research finding a positive but small impact of remittances on growth, others finding
a negative but small impact, and still others finding the link ambiguous. Ziesemer
(2006) found, for example, that remittances have a higher impact in countries with
per capita incomes below $1,200. Some studies did attempt to identify the
conditions that may contribute to a positive impact, such as high levels of
educational attainment, existence of high-quality institutions, depth of the financial
market, and price stability. The level of financial development appears to matter
according to several recent studies (Ramirez & Sharma, n.d.; Giuliano & Ruiz-
Arranz, 2009; Rioja & Valev, 2004). Remittances have a positive impact on growth
in financially less developed economies but not in others possibly because, as one
study hypothesised, they act as substitutes for the financial sector in the former (see
Barajas et al., 2009). Remittance inflows can enhance capital accumulation in a
number of ways. An obvious one is by helping create domestic macroeconomic
stability. Chami, Hakura, and Montiel (2009) showed that large remittances are
associated with lower output volatility. As a result stability firms would demand
lower risk premium in undertaking investments. Another way is the direct effect of
remittances on easing liquidity constraints to greater investments in human or
physical capital. And a third way is by enabling a remittance receiving country to
leverage future inflows effectively serving as collateral. The guarantee of adequate
future flows to service debts will reduce the cost of borrowing, quite apart from the
direct impact on easing liquidity.

If remittances mainly increased the incomes of poorer households in

the origin country, the expectation is that the impact on national savings rates would
be minimal since the poor consume most additional income. This would be all the
more true if remittance income was not seen as transitory but permanent. Studies,

22
however, have shown that significant proportions of remittance income were saved.
In Pakistan during the 1980s and early 1990s, Adams (2002)12 suspected that
recipients viewed remittances as uncertain in nature, and thus saved more of them
for future contingencies. He found that the marginal propensity to save out of
international remittances was about 0.71 compared to a much lower 0.085
propensity to save out of rental income. However, in his study in Ghana, he found
that recipients treated remittances as fungible, or the same as income from any other
source. In Moldova, perhaps the poorest country in Europe, where about 1.4 million
people out of a total population of 3.4 million belong to households that receive
remittances, the marginal propensity to save rises with the significance or share of
remittances in the total household budget (Mîsliţcaia, 2009).13 In Nepal, another
low-income country, Giri (2008) also found a high propensity to save among
remittance receiving households. She worked with cross-sectional data from the
Living Standards Survey and adjusted her data on remittances for informal
transfers. She estimated that for every rupee transferred by Nepali migrants in India
to their families at home, the household saved between 0.18 to 0.29 rupees. The
income elasticity of savings is large - for every 1% rise in remittances there is a
0.36% rise in savings.

23
 CHAPTER – 3

LEGAL IMPLICATIONS

3.1 The Importance of Understanding Legal Requirements

Failure to comply with local legal requirements can have

catastrophic effects on a company’s growth. These effects may include the risk of
substantial fines – and the associated reputational damage. This could also lead to
disqualification from applying for or fulfilling contracts. Failure to comply with
immigration requirements can even lead to the deportation of key personnel.

Therefore it is imperative businesses know where they stand on legal

requirements. They should have simple but effective processes and partners in place
to ensure total compliance, including on payments and paperwork.

These processes and partners can deliver benefits beyond simply

complying with global mobility law. Not least, saving your team time and your
business money.

3.2 Legal Implications of International Employment to Consider

Compliance with global mobility law requires an in-depth

knowledge of specific rules and regulations relating to immigration, data protection,
employment law (payroll, working hours and discrimination), and intellectual
property (patents, trademarks, and copyrights) across various jurisdictions.

Cooperating with multiple countries’ global mobility laws and

legislations can seem complex. The right technology partnerships can simplify and
streamline the process.

Working Hours and Overtime Laws

Each country has different rules regulating a standard work

week; international working hours for the average employee can vary wildly.

24
 Numbers vary from 29.5 hours for the average Austrian to 52.6 hours
for a worker based in the United Arab Emirates. Monitoring and managing the
working hours of your global workforce is vital to ensuring compliance.

Laws also apply to overtime. Most countries have legislative or

collective agreements governing overtime pay, with provisions for maximum
overtime allowances. Total working time limits vary from country to country. Many
European countries like Italy, Sweden and Germany cap overtime allowances.

If you allow your global workforce to exceed legal working hours

and overtime limits, you run the risk of fines, penalties, and even criminal sanctions.
Overlaying employee activity data with relevant working hours and overtime
legislation can reduce this costly headache.

Legal Minimum Wage

The cost of living, economic development and the labour market

differ significantly by country. However, minimum wages are used by most nations,
varying from a unique rate applied to the whole country to more complex systems
with differing rates depending on factors such as sector, geography, and enterprise
size. Operating in a country with no legal minimum wage requirement doesn’t let
employers off the hook. These countries may still have wage minimums set through
collective bargaining contracts.

Since each country uses different logic for setting its minimum
wage, language can be unclear, even for professionals. For example, the UK’s
national minimum wage has been rebranded as the National Living Wage (not to be
confused with the independently set Real Living Wage).

HR and payroll experts must keep up to speed, nonetheless, because

in many countries, it’s against the law for an employer to pay less than the minimum
wage. Employees are entitled to take legal action, which can result in the costly
resolution of back-dated non-payment. Accurate records should be kept for this

25
reason; HR and business leaders must also track minimum wage increases that can
impact bottom-line profitability.

Employee Benefits and Entitlements

Minimum levels of employee benefits and entitlements vary by

region. Modern businesses also often go beyond mandatory benefits required by
local law, offering additional perks to attract and retain international employees.
78% of employees agree that benefits are significant in their decision to accept a
job, according to research by EBRI. However, an employee perks package should
always be developed on top of a clear understanding of the legal baseline.

For example, a condition of residence and employment in some

countries is a subscription to a minimum compulsory health insurance plan, which
may be salary deducted. An employer may also seek to offer private health and
medical insurance across the board to its global workforce. Monitoring local
healthcare laws in various regions against the globally expanding costs of providing
medical treatment (which is expected to rise by 12.3% in 2023, according to People
Management) allows employers to review and adjust additional benefits
accordingly.

Paid leave is another employee benefit that has many different laws
across jurisdictions. Annual leave, sick leave, maternity/paternity, parental leave,
and bereavement leave vary significantly by country.

Of course, healthcare and paid leave are just two possible benefits
for many. Others include pension contributions, flexible work schedules,
professional development and even gym memberships.

Complying with global mobility laws around benefits and

entitlements in the countries you operate in is non-negotiable. It also provides a
useful baseline for adding additional benefit packages so that you can provide pay
and benefits parity across countries or in the case of an international assignment.

26
Discrimination and Equal Opportunity Laws

The global workplace has become more diverse in the last few
decades due to many countries introducing regulations governing equality and
diversity. However, it’s worth noting that different territories experience varying
challenges and successes.

In the UK, for example, employers are legally bound by the Equality
Act 2010. Many British companies also understand diversity presents an
opportunity to increase skills and engage a wider range of views.

There are some barriers to progress on equality. In gender equality,

for example, just 12 countries have legal gender parity and over 50 countries
maintain laws that discriminate on the basis of sex. Appreciating how regional laws
affect your global workforce steers your equality and diversity strategy in the right
direction while allowing you to protect your business from legal action and
reputational damage.

3.3 The Role of Technology in Ensuring Legal Compliance

Compliance issues often arise in global mobility programmes

because tracking all the moving parts of global mobility law is difficult. Keeping
up with multiple employment laws and cross-border tax obligations whilst meeting
the needs of individual employees makes sense strategically but can prove tricky
operationally.

Technology alleviates compliance pressures by allowing teams to

track and analyse worker and compliance data, acting as a single source of truth that
cuts out time, costs, and the risk of human error.

Historically, multiple vendors were involved in ensuring a compliant

global mobility programme. Today, powerful AI and cloud-based compliance
management systems play a role in centralising the resources of global mobility
management programmes.

27
Compliance Management Systems

A compliance management system is a helpful centralised hub for

accessing the resources required to deliver a compliant global mobility management
programme. Up-to-date compliance data is available at the click of a button,
allowing users to make quick decisions on cross-border projects, which are all
tracked and managed in the same place.

In the past, global mobility teams would have accessed information

from various channels and vendors, inputting it into their plan manually. But when
compliance information must be continually reviewed and updated, manual updates
are laborious, prone to human error and potentially costly when issues occur.

Compliance management systems take international teams to the

next level by removing the need to firefight against administrative duties, freeing
them to focus on strategic global mobility risk management or talent recruitment
instead.

A perfect compliance management system is Centuro

Global’s Centuro Connect. The platform offers instant access to up-to-date
information and solutions without the expensive cost or time delay in moving your
employees or business to new markets. Its features include;

1. Case Management – Manage your expansion plans and project status

instantly.
2. Concierge Service – Our Concierge team helps you through complex
processes or queries.
3. Cost of Living Calculator – Quickly compare cost of living information
across countries, areas and cities in seconds.
4. Expert Connect – Local experts from around the world at your fingertips.
5. Custom Dashboard – Initiate a case and track all your respective cases and
data in one easy-to-use dashboard.

28
 6. Global Blueprints – We make starting up in more than one market easy. Our
blueprints are available for over 170 countries.

Blockchain for Secure Documentation

Sensitive documents relating to individuals should always be

handled securely. But how do you store, organise, and manage them when you need
secure access to thousands of files? Blockchain is the obvious choice for
maintaining documents securely and safely.

The decentralised nature of blockchain, which is a distributed

database that maintains a growing list of ‘blocks’ (records), makes it simple to
retrieve documents while removing the risk of accidental deletion or misplaced files
– records are connected in a way that’s impossible to tamper with.

Securely and transparently handling essential legal documents is

integral to staying compliant while streamlining global mobility processes.

Case Studies: Companies Navigating Legal Complexities Successfully

Many businesses today are already expanding globally with a high

degree of legal compliance. A couple of examples of businesses navigating legal
complexities successfully are:

1. A-Gas, a prominent supplier of refrigerants and environmental services,

sought to acquire an established refrigerant company in the UK (therefore
solidifying its presence in the competitive UK market). The acquisition
process involved intricate legal and immigration considerations, including
the sourcing and timely submission of relevant visa documents, to ensure
employees entering the UK were compliant.
2. SNC-Lavalin – Saudi, a renowned engineering and construction firm, aimed
to establish a subsidiary in the UK to expand its international operations.
Saudi and UK business registration is vastly different. Still, SNC-Lavalin
successfully negotiated registration, tax laws, labour laws and data

29
 protection standards to register successfully and capitalise on the European
market’s potential.

3.4 Best Practices for Managing Legal Risks

As the businesses above demonstrate, common legal risks, such as

breach of contract, employment law claims, underreported taxes, and immigration
breaches, are largely avoided with best practices in place. Considerations when
managing legal risks are:

1. Be proactive. Develop a comprehensive global mobility risk management

framework that mitigates regulatory changes and challenges.
2. Build a risk mindset into your strategy and operations. Encourage your
leaders to build risk adherence into everything they do.
3. Value local expertise. Understand local laws and legislation by working
with on-the-ground experts.
4. Refine your information flows. Regularly review data and amend policies
and contracts to reflect current legislation.
5. Underpin your programme with accurate data. Use a single source of truth
for all your data, using integrated technology to reduce multiple touchpoints.
6. Train employees on compliance. Educate your employees on compliance
procedures and policies.

In a global workforce management programme, your people are your

best asset. Get your team’s buy-in when it comes to managing legal risks, and lean
on best-in-class global mobility partners to save time and money.

Regular Legal Audits

Regular legal audits are vital to keeping a global mobility risk management
programme on track. Companies should:

1. Conduct regular risk assessments.

2. Implement efficient policies and procedures.

30
 3. Provide employee training.
4. Monitor compliance.

Regulations around the world change constantly, and identifying and

preparing for changes to local regulations has an ongoing impact on short and long-
term employee mobility.

It’s simpler to conduct assessments in the regions where your

workforce operates, understanding who in your organisation will be affected by
local legislative or environmental changes (and what can be done to support them)
if you have technology that will alert you to changing regulations.

Partnering with Experts

If you have multiple territories to account for, the evolving nature of

legal compliance can seem like a never-ending obstacle course. That’s why strategy-
focused global workforce management teams often outsource their mobility
requirements to partners with on-the-ground HR, legal, tax, accounting,
and immigration expertise.An expert partner helps to get global mobility
programmes across the line in multiple locations by delivering up-to-the-minute
details in easy-to-access technology platforms, allowing leaders to focus on the
strategy behind cross-border projects, entity setup and employee relocation.

Imagine how much easier it would be to establish a compliant

presence in multiple countries if you had a centralised case management system that
tracks all cases and manages all assignments in one place. That’s what an expert
partner provides.

31
 CHAPTER – 4

INTERNATIONAL LABOUR LAWS

4.1 International Labour Lw

International labour law is the body of rules

spanning public and private international law which concern the rights and duties
of employees, employers, trade unions and governments in regulating Work
(human activity) and the workplace. The International Labour Organization and
the World Trade Organization have been the main international bodies involved in
reforming labour markets. The International Monetary Fund and the World
Bank have indirectly driven changes in labour policy by demanding structural
adjustment conditions for receiving loans or grants. Issues regarding Conflict of
laws arise, determined by national courts, when people work in more than one
country, and supra-national bodies, particularly in the law of the European Union,
have a growing body of rules regarding labour rights.

International labour standards refer to conventions agreed upon by

international actors, resulting from a series of value judgments, set forth to protect
basic worker rights, enhance workers’ job security, and improve their terms
of employment on a global scale. The intent of such standards, then, is to establish
a worldwide minimum level of protection from inhumane labour practices through
the adoption and implementation of said measures. From a theoretical standpoint,
it has been maintained, on ethical grounds, that there are certain basic human
rights that are universal to humankind.28 Thus, it is the aim of international labour
standards to ensure the provision of such rights in the workplace, such as
against workplace aggression, bullying, discrimination and gender inequality on
the other hands for working diversity, workplace democracy and empowerment.

28
Brown, Drusilla K., Alan V. Deardorff and Robert M. Stern. "International Labour Standards and
Trade: A Theoretical Analysis", Fair trade and harmonisation: Prerequisites for free
trade? Cambridge, MA: MIT Press, 1996. 227–272.

32
 While the existence of international labour standards does not
necessarily imply implementation or enforcement mechanisms, most real world
cases have utilised formal treaties and agreements stemming from international
institutions.29 The primary international agency charged with developing working
standards is the International Labour Organization (ILO). Established in 1919, the
ILO advocates international standards as essential for the eradication of labour
conditions involving "injustice, hardship and privation". According to the ILO,
international labour standards contribute to the possibility of lasting peace, help to
mitigate potentially adverse effects of international market competition and help the
progress of international development.

Implementation, however, is not limited to the ILO nor is it

constrained to the legislative model that the ILO represents. Other alternatives
include direct trade sanctions, multilateral enforcement, and voluntary standards. In
addition to controversies that arise over each of these models, greater issues have
also been raised concerning the debate over the need for international labour
standards themselves. However, while critics have arisen, the international
community has largely come to a consensus in favour of basic protection of the
world’s labour force from inhumane practices.30

Associated with the development of successful international labour

standards is proper monitoring and enforcement of labour standards. Most
monitoring occurs through the ILO, but domestic agencies and other NGOs also
play a role in the successful monitoring of international labour standards.31

Since the Industrial Revolution the labour movement has been

concerned how economic globalisation would weaken the bargaining power of

29
Berik, Günseli and Yana Rodgers. 2006. "Asia's race to capture post-MFA markets: a snapshot of
labour standards, compliance, and impacts on competitiveness", Asian Development Review 23(1):
55–86.
30
Maskus, Keith E. "Should core labour standards be imposed through international trade
policy?" The World Bank: The Policy Working Paper Series 1 (1999), accessed March 20, 2011.
31
"Applying and promoting International Labour Standards". International Labour Organization.
Retrieved 4 November 2013.

33
workers, as their employers could move to hire workers abroad without the
protection of the labour standards at home. In the Fourth Annual International
Congress in 1869, the following was resolved:32 the extension of the principle of
free trade, which induces between nations such a competition that the interest of the
workman is liable to be lost sight of and sacrificed in the fierce international race
between capitalists, demands that such [unions] should be still further extended and
made international.

The concept of protecting workers from the perils of labour

environments dates all the way back to 14th-century Europe. The first example of
the modern labor rights movement, though, came in response to the brutal working
conditions that accompanied the onset of the Industrial Revolution in the 18th and
19th centuries.33 In 1802, the Parliament of the United Kingdom passed what is now
known as the English Factory Act.

The act sought to regulate the workday of apprentices by restricting

work hours to 12 per day. In doing so, the English Factory Act served as a precursor
to the models of international labour standards seen today. Minimal regulations
similar to those found in English legislation subsequently became increasingly
commonplace among 19th century industrialising nations. Early attempts at the
provision of labour standards were limited in scope, though. Such conventions
focused primarily on improving working conditions in relation to hours of work,
women's and children's labour, and the use of hazardous materials.

While it was evident that support for workers’ rights was

inconsistent across international boundaries, activists originally only employed the
use of moral suasion to deal with differences in labour standards. It was not until
the latter parts of the 19th century that efforts were made to implement uniform
standards on an international scale.

32
K Marx, Report of the General Council to the Fourth Annual Congress (1869)
33
Brown, Drusilla K. "Labour standards: Where do they belong on the international trade
agenda?" The Journal of Economic Perspectives 15, no. 3 (2001): 89–112, accessed March 20, 2011.

34
4.2 Creation of International Labour Organization

In 1919, following the end of the First World War, the agenda on
international labour standards reached a new level of prominence as a result of the
founding of the International Labour Organization.[1] As mandated by Part XIII of
the Treaty of Versailles, the ILO was created as a branch of the League of Nations in
order to address all conceivable aspects of labour rights. Preliminary efforts focused
primarily on the eradication of slavery and all forms of forced labour. The agenda
quickly expanded, however, to include the rights to freedom of association and
collective bargaining, non-discrimination in employment, and the elimination of
child labour. The ILO’s creation marked the first instance of multiple major
international actors coming together in an attempt to reach a consensus on universal
workers’ rights. Despite a lack of any formal means of coercion, the ILO then urged
its 44 original member countries to adopt and ratify conventions limiting oppressive
labour market practices.

4.3 The Early years of the International Labour Organization

In the first two years of the ILO’s existence, 22 international labour

conventions were adopted.34 Some of the topics that the first conventions addressed
were “hours of work in industry, unemployment, maternity protection, night work
for women, minimum age, and night work for young persons in industry.” In 1930,
the ILO adopted the first future fundamental convention: the Forced Labour
Convention (No.29), which prohibited all forms of forced labour unless exempted
by certain conditions.35 With the onset of the Great Depression, the United
States joined the ILO in 1934 noting that complex labour issues would require an
international response.36 Throughout the history of the League of Nations, the ILO
is the only League-affiliated organisation that the United States joined. With the
backdrop of World War 2, the ILO broadened its mandate with the Declaration of

34
"Origins and History". International Labour Organization. Retrieved 4 November 2013.
35
"ILO between the two world wars 1930". International Labour Organization. Retrieved 4
November 2013.
36
"Brief History and Timeline". International Labour Organization. Retrieved 4 November 2013.

35
Philadelphia, signed during the 26th general conference session in 1944. The
Declaration of Philadelphia, which is attached to the general constitution of the ILO,
foreshadows some of the ILO’s earliest future fundamental conventions including
the freedom of expression and association which was adopted in 1948 as
Convention 87, Freedom of Association and Protection of the Right to Organise
Convention.

4.4 Globalisation and Changing Divisions of Labour

In the first half of the 20th century, global divisions of labour were
shaped largely by the practices of colonialism. Poorer countries exported natural
resources to richer countries, which then manufactured and produced specialised
goods.37 As many colonised nations achieved independence, developing nations in
the global South took on increasingly protectionist policies in attempts to build up
the manufacturing sectors of their economies, thus marking a shift in the global
division of labour. However, towards the latter part of the 20th century, a number
of factors saw protectionist measures fall. Such factors included rising labour costs
in the north, advances in transportation and communication technologies, the
liberalisation of trade, and the deregulation of markets. In the midst of a changing
international labour landscape, developing nations in the south took on a previously
unseen domination of the labour-intensive manufacturing industry.

With the deregulation of major markets and significant increases in

the volume of international trade, attempts to make manufacturing sectors more
attractive to retailers saw extreme downward pressure placed on the quality of
working conditions in lower income regions of the world.38 This gave rise to
growing concerns about a global race to the bottom, in which governments take part
in the iterative loosening of labour protections in attempts to aid the international

37
Kabeer, Naila. "Globalisation, labour standards, and women's rights: dilemmas of collective
(in)action in an interdependent world", Feminist Economics 10, no. 1 (2004): 3–35, accessed March
18, 2011.
38
Block, Richard N., Karen Roberts, Cynthia Ozeki and Myron J. Roomkin. "Models of
international labour standards", Industrial Relations 40, no. 2 (2001): 258–292.

36
competitiveness of export-oriented industries. Fears of this nature consequently
produced the notable increases in the discourse on international labour ethics that
characterise the contemporary international human rights arena.

The traditional model of labour standards regulation has been, for

most of history, within-country or within-jurisdiction legislation and
enforcement. However, this model may not be appropriate when competitors in a
product market are located in different countries or jurisdictions with dissimilar
labour standards. This concern opens up the discussion for the establishment of
international labour standards, which, in turn, require international regulation,
particularly in the context of global trade. However, determining an effective
method of implementation of international labor standards has been an area of
difficulty and an area that is highly contested. The following sections outline several
existing models for the regulation of international labour standards based largely on
work by Richard N. Block, Karen Roberts, Cynthia Ozeki and Myron J. Roomkin
in their paper titled "Models of International Labour Standards".

4.5 Legislative

The legislative model for implementing a set of international labour

standards is the best known. This model involves the enactment and enforcement
of labour standards by a legislative body across a union of countries. Social policies
regarding employment and labour typically fall into three areas: free movement of
labour, prevention of social dumping via low labour standards, and dialogue
between labour and management. This model has been adopted by the European
Community, part of the European Union, and is also the model taken by
the International Labour Organization (ILO). Organisations, such as these, are
given the authority, through a series of procedures, to then issue directives in any of
these areas of labour policy. Member states must comply with these directives;
however, what compliance actually means and entails is left to the discretion of each
member state.

37
 For over 25 years, there have been links between labour standards
and international trade, particularly for specific commodities.39 The earliest and
broadest-based example of linking international labour standards with trade is found
in U.S. legislation under the Trade Act of 1974, creating the Generalized System of
Preferences (GSP). Under the GSP, the United States was allowed to grant
nonreciprocal tariff preference to less developed countries, based on certain country
and product eligibility criteria, in order to promote their economic growth and
development. Among the country eligibility criteria is affording workers in a
country certain internationally recognized rights, similar to the four core
conventions established by the ILO.40 If a complaint or petition is filed against a
GSP beneficiary, these are processed through the Office of the United States Trade
Representative. Since 1988, eight countries have been suspended or terminated
from the GSP program: Burma, Liberia, Maldives, Mauritania, Nicaragua, Pakistan
(several products), Sudan and Syria.41 Four countries have been suspended but
subsequently reinstated: Central African Republic, Chile, Paraguay, and
Romania. Additionally, Section 2202 of the Omnibus Trade and Competitiveness
Act of 1988 requires that the Secretary of State submit to Congress an annual report
on the economic policy and trade practices of each country with which the United
States has an economic or trade relationship.

The trade sanctions model in the United States, also working as an

incentives approach of sorts, appears to have been successful in forcing U.S.
officials to encourage countries that are the subject of complaints to address severe
violations of labour standards, as defined in the legislation. This model, however,
is not designed to be a broad-based guarantee of labour standards among trading

39
Berik, Günseli and Yana Van der Meulen Rodgers. "Options for enforcing labour standards:
Lessons from Bangladesh and Cambodia", Journal of International Development 22 (2008): 56–85,
www.interscience.wiley.com, accessed March 20, 2011.
40
U.S. International Trade Commission. 1997. Advice on Providing Additional GSP Benefits for
Least Developed Countries. Investigation No. 332-370, Publication 3023, February.
41
"Countries Suspended from the GSP Program for Failure to Enforce Internationally Recognised
Worker Rights", 1998, Correspondence with Jon Rosenbaum of the Office of the United States Trade
Representative.

38
partners because it is based on external complaints not the results of
monitoring.[14] While it is effective in providing procedural rights, a lower
percentage of trading partners provide substantive standards, so this measure has
had mixed success. Some hope that implementation in competitor developing
countries along with support by complementary domestic policies would allow this
model to overall, raise the global social floor.

4.6 Multilateral Enforcement

Another example of the various methods of implementation of

international labour standards is the multilateral enforcement model. The model,
embodied in the North American Agreement on Labor Cooperation (NAALC), is
different from other compulsory methods in that it opposes any imposition of
common standards schemes. Instead, the multilateral enforcement model requires
that signatories to agreements like the NAALC make firm commitments to existing
labor standard structures within their respective domestic spheres. The unique
aspect of the NAALC, however, is that it does not in any way dictate policy.

This includes a strong aversion to uniformly adopted standards on

the international level. Rather than encouraging the inclusion of a baseline set of
workers’ rights, the multilateral enforcement model merely requires that its
members strive to create unbiased administrative bodies that judge whether or not
appropriate measures are being taken to ensure the continued support of domestic
labour standards.

In this manner, the multilateral model is not international in its

adoption of a common set of principles, but rather in its level of required
commitment to an unspecified group of standards. In enforcing such commitments,
agreements like the NAALC primarily utilize recommendations and publicity to
make decision makers accountable for their actions. Multilateral enforcement
models like the NAALC have experienced mixed results in terms of effectiveness
due to their limited powers of influence.

39
4.7 Voluntary Standards

The voluntary standards model makes reference to a system of

implementation for labour standards based on a corporate code of conduct.
Corporate codes of conduct are adopted when various organizations join together
in agreement to operate under a set of socially responsible labour rules. Therefore,
this model generally involves voluntary behaviour and self-regulation. An example
of voluntary corporate adoption of labour standards is given by the Sullivan
Principles in South Africa that were taken on by a group of U.S.
companies.42 Additionally, U.S. apparel retailers, such as Nike, the Gap, and Liz
Claiborne, have recently attempted to put in place a system of regulations to prevent
their products from being produced under sweatshop conditions.43

For this model to be successful, there must be incentive for

compliance. The problem, however, is that in the case of labour standards, there are
usually high economic incentives to disregard these standards, which are viewed as
rises in production costs. For this reason, the monitoring system plays a crucial role
in the success and effectiveness of such conditions. In some cases, like the
aforementioned Sullivan Principles in South Africa, monitoring has demonstrated
the codes’ success. In this case, investors rewarded adherence to the code, as a sign
of corporate citizenship. On the other hand, consumers can also punish firms they
see as socially irresponsible by means of boycotts or the individual decision to
avoid purchase of certain products. The main point of these examples being: where
there is strong pressure from investors and consumers to support certain standards,
companies may benefit by being seen as upholding accepted morals.44

42
Dordrecht, Jan, Karen Paul and Steven D. Lyndenberg. 1992. "Applications of Corporate Social
Monitoring Systems", Journal of Business Ethics 11(1):1–11.
43
Green, Paula. 1998a. “U.S. Apparel Industry to Monitor World Shops.” Journal of Commerce,
October 19, p. 1A.
44
Freeman, Richard B. 1994. “A Hard-Headed Look at Labour Standards.” In International Labour
Standards and Economic Interdependence, edited by Werner Sengenberger and Duncan Campbell,
pp. 79–91. Geneva: ILO>

40
 Now, while this is true, it is also true that where costs of complying
with stringent standards are high and the sources of consumer pressure diffused,
codes are likely to be ineffective. It takes the active involvement and interest of the
company, in response to whatever actions have been taken, for this model to be
successful. When they choose to respond to outside pressures, companies use means
such as public announcements, local religious leaders, human rights activists,
university professors, and labor representatives, among others, to implement
compliance and a system of monitoring. Another difficulty has been that, while
pressure has been effectively pressed on individual firms, it has been difficult to
find agreement at an industry level, in terms of corporate codes.

Finally, a variation of the voluntary standards models is one of

certification, which began in October 1997 with the issuance of SA (Social
Accountability) 8000 by the Council on Economic Priorities Accrediting Agency
(CEPAA). SA8000 is an example of a corporate certification process for social
responsibility and labor standards. This certification process has the purpose of
identifying corporations that comply with certain criteria based on social
accountability requirements, including criteria for child labor and worker health
and safety. The resulting certification then serves the purpose of assuring customers
that goods and services provided by certified firms have been produced by workers
who are offered labour standards that meet at least a minimally acceptable level.

4.8 International Labour Organization (ILO)

The International Labour Organization (ILO) is a specialised agency

of the United Nations, consisting of 187 member countries, that deals with labour
issues. Following World War I, the Treaty of Versailles contained the first
constitution of a new International Labour Organization founded on the principle
that "labour is not a commodity", and for the reason that "peace can be established
only if it is based upon social justice".[20] The primary role of the ILO has been to
coordinate principles of international labour law by issuing Conventions, which
codify labour laws on all matters. Members of the ILO can voluntarily adopt and

41
ratify the conventions by enacting the rules in their domestic law. For instance, the
first Hours of Work (Industry) Convention, 1919 requires a maximum of a 48-hour
week, and has been ratified by 52 out of 185 member states. The UK ultimately
refused to ratify the Convention, as did many current EU members states, although
the Working Time Directive adopts its principles, subject to the individual opt-
out.[21] The present constitution of the ILO comes from the Declaration of
Philadelphia 1944, and under the Declaration on Fundamental Principles and
Rights at Work 1998 classified eight conventions45 as core. Together these require
freedom to join a union, bargain collectively and take action (Conventions
Nos 87 and 98) abolition of forced labour (29 and 105) abolition labour by children
before the end of compulsory school (138 and 182) and no discrimination at work
(Nos 100 and 111). Compliance with the core Conventions is obligatory from the
fact of membership, even if the country has not ratified the Convention in question.
To ensure compliance, the ILO is limited to gathering evidence and reporting on
member states' progress, so that publicity will put public and international pressure
to reform the laws. Global reports on core standards are produced yearly, while
individual reports on countries who have ratified other Conventions are compiled
on a bi-annual or perhaps less frequent basis.

The ILO, by its existence, is the recognised international vehicle for

raising international labour standards issues in a worldwide forum.46 No other
model in existence is capable of performing this role. This organisation establishes
labour standards by means of both conventions and recommendations and has a
tripartite governing structure – representing government, employers and
workers. While ILO recommendations take more of the role of providing mere
guidance to member states, the stronger form, ILO conventions, have the status of
a treaty, which, in principle, is binding on the member countries that voluntarily

45
There are 189 Conventions, however some have been superseded by others. For instance,
Conventions Nos 2, 34, 96 and 181 all concern private employment agencies, but only Convention
181 is in force.
46
"Alphabetical list of ILO member countries", International Labour Organization, accessed April
3, 2011.

42
ratify them. These represent benchmarks of strong labour standards towards which
countries can strive by promulgating and enforcing national laws that comply with
the conventions. It is through these means that the organisation works to enforce
international labour standards.

In 1998, the ILO International Labour Conference adopted the

“Declaration on Fundamental Principles and Rights at Work” defining certain rights
as “fundamental.” The Declaration commits member states to respect and promote
these main principles, referred to as the core conventions, which are grouped into
the following four categories (total of eight ILO conventions): freedom of
association and the effective recognition of the right to collective bargaining, the
elimination of forced or compulsory labour, the abolition of child labour, and the
elimination of discrimination in respect of employment and occupation. The
Declaration claims these rights to be universal, applying to all people in all States –
regardless of level of economic development. The International Labour Conference
regards these principles as so important that all member counties are obligated to
comply with them, regardless of ratification status.

Alongside the fundamental conventions, the ILO has also identified

four priority conventions or governance conventions. Crucial to the running of the
international labour standards systems implemented by the ILO, the ILO
recommends that member states ratify the following priority conventions: the
Labour Inspection Convention (1947), the Labour Inspection (Agriculture)
Convention (1969), the Triparte Consultation (International Labour Standards)
Convention (1976), and the Employment Policy Convention (1964).47

Issues with the ILO’s approach to implementing international labour

standards come down to a question of universality amongst the conventions and
member countries, with some arguing that flexibility is necessary to meet the needs
of developing countries. These concerns gather around the idea that the race to

47
"Conventions and Recommendations". International Labour Organization. Retrieved 4
November 2013.

43
expand exports or attract foreign investment can cause competition on the basis of
labour costs, leading to a decline in international labour standards as governments
either dismantle national laws that protect workers or weaken the enforcement of
these laws.[14] The underlying issue here is the connection between national
incomes and the standards a country can feasibly support while remaining
competitive. Other issues involve enforcement of these standards following
ratification. The ILO provides a vehicle for investigating cases of noncompliance
through representations, filed by employer or worker organisations, or complaints,
lodged by another member that also ratified the convention.[14] These are then sent
to a committee that launches an investigation and report. This is followed by either
acceptance of recommendations on steps the government may take to address the
complaint or the request to submit the case to the International Court of Justice.
Failure to comply may result in an incurred sanction from the organization.

Overall, the ILO structure essentially created a system of voluntary

compliance with labor standards based on ratification of the established
conventions. In general the enforcement system of representation and complaints
has been successful – success being measured by the fact that only one
representation or complaint has reached the most severe sanction.[14] On the other
hand, due to the absence of strong sanctions, the ILO lacks a strong enough
deterrent factor for countries inclined to violate the standards the ILO upholds.
Further, the “flexibility” of standards allows too much leeway for adaptation based
on independent circumstances, diminishing the force of the conventions.

44
 CHAPTER - 5

JUDICIAL TRENDS

Case 1: National Federation Of Blinds vs State Of U.P. And Others on 28

January, 2000 - 2000(2) AWC1234, (2000) 3UPLBEC1879, AIR 2000
ALLAHABAD 258, 2000 ALL. L. J. 2310, 2000 AIHC 4441, 2000 (2) ALL WC
1234, 2000 (3) UPLBEC 1879, 2001 (42) ALL LR 603, 2001 (1) ALL RENTCAS
278

The only question, which needs to be determined by this Court is as

to whether the Lucknow Development Authority while giving preference for
allotment of plots and houses to blinds and other handicapped persons, should also
accord concession in the rates of the land.

Present petition has been filed by National Federation of Blinds, U.

P. Branch, Lucknow and one Sri Dr. Pramod Kumar Singh, who is a Member and
General Secretary of the Federation and has been working as Lecturer in
Government Raza Post Graduate College, Rampur. In spite of the disability which
Dr. Pramod Kumar Singh, petitioner No. 2 suffered, he obtained degree of
Doctorate and has been performing the duties of lecturer imparting education to
post graduate classes. Petitioner No. 2 had applied for allotment of a plot of land to
be leased out to him under the scheme known as Shikshak Vihar, Jankipurarn
Extension, Sitapur Road, Lucknow and deposited the requisite form along with the
registration charges of Rs. 43,200 by means of a bank draft. After completion of
necessary formalities, petitioner No. 2 was allotted property No. 1/10 in Sector 1
'B' type plot, the estimated area of which is 288 sqr. metres and allotment order was
issued to the petitioner on 8.7.1999.

The petitioner has approached opposite party No. 3 for giving

concession in rates of the said property in accordance with Section 43 of the Persons
with Disabilities (Equal Opportunities. Protection of Rights and Full Participation)
Act, 1995, (hereinafter mentioned as the Act, 1995) by making an application, but

45
as his cries in blindness was not heeded to he filed the present petition. Section 43
of the Act reads as under: Scheme for preferential allotment of land for certain
purposes.--The appropriate Governments and local authorities shall by notification
frame schemes in favour of persons with disabilities, for the preferential allotment
of land at concessional rates of : (a) house, (b) setting up business, (c) setting up of
special recreation centres.

The aforesaid Act was passed by the Parliament to give effect to the
proclamation on the Full Participation and Equality of People with Disabilities in
the Asian and Pacific Region, The Preamble of the Act provides as under : "Whereas
the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993-
2002 convened by the Economic and Social Commission for Asian and Pacific
Region held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on
the Full Participation and Equality of People with Disabilities in the Asian and
Pacific Region ; And whereas India is a signatory to the said proclamation ; And
whereas it is considered necessary to implement the proclamation aforesaid ; Be it
enacted by Parliament in the Forty Ninth year of the Republic of India."

As indicated in the Preamble of the Act, itself, India is a Signatory

of the aforesaid covenant. Now, first of all, we have to examine the effect of
proclamation signed by India.

In England, even if International conventions or covenants are

ratified by the State, the English Courts cannot directly enforce the rights
guaranteed by the covenants so long it is not adopted by the Parliament.

But in some countries the Constitutions place treaties on the same

rank as the Constitution itself, as "the Supreme Law of Land". The foremost of such
Constitutions is that of the United States of America. Article VI (2) provides as
under : "This Constitution, and the laws of the United States, which shall be made
in pursuance thereof ; and all treaties made. under the authority of the United States,
shall be the supreme law of the land, and the Judges in every State shall be bound

46
thereby, anything in the Constitution or laws of any State to the contrary,
notwithstanding."

Thus, in accordance with the said provision in the Constitution of

the United States of America, the treaties are placed on the same footing as a federal
law where the treaty, is self-executing, but if a treaty is not self-executing no
municipal court can enforce it, until it is implemented by a valid law.

Article 25 of the West German Constitution, 1949, provides that the

'general principles of international law' shall become part of the domestic law, and
directly create rights and duties for the inhabitants of the federal republic, without
domestic laws and in derogation of inconsistent domestic law.

The framers of the Indian Constitution were inspired by the ideals of

international peace and respect of human rights as embodied in the United Nations
Charter and the Universal declaration. For that reason, they engrafted a special
provision in Article 51 of the Constitution as a Directive Principles of State policy,
which provides that the State shall endeavour to foster respect for international law
and treaty obligations in the dealings of organised peoples with one another.

The early decisions of Hon'ble Supreme Court were to the effect that
the Directive Principles of State Policy were not justiciable and enforceable in the
Courts. The duty of the Courts in relation to the Directive Principles of State Policy
came to be emphasised in later decisions.

In Keshavananda v. State of Kerala, (1973) 4 SCC 225, per majority,

laid down certain broad propositions with references to Fundamental Rights, which
are bound to be productive of far-reaching effects in future cases before all Courts.
It was observed that the Directive Principles of State Policy supplement each other
in aiming at the same goal of bringing about a social revolution and the
establishment of a welfare State. The Constitution alms at synthesis of the two, i.e.,
Fundamental Rights and the Directive Principles of State Policy, which constitute
"conscience of the Constitution" and together they form core of the Constitution.

47
The Courts have a responsibility in so interpreting the Constitution as to ensure
implementation of the Directives and to harmonise the social objective underlying
the Directives with the individual rights. Hon'ble Supreme Court in Keshaunanda's
case (supra) observed that primarily the mandate in Article 37 is addressed to the
Legislature, but, in so far as the Courts of justice can indulge in some judicial law
making, within the interstices of the Constitution or any statute before them for
construction, the Courts too are bound by this mandate. It follows thus that the
Courts should uphold, as far as possible, legislation enacted by the State to ensure
'distributive justice' meaning thereby to remove inequalities. In the recent years,
Hon'ble Supreme Court enforced directives by issuing directions.

Article 38 of the Constitution provides that it is the duly of the State

to strive to promote the welfare of the people by securing and protecting as
effectively as it may, a social order in which justice, social, economic and political,
shall inform all the institutions of the national life, and the State shall, in particular,
strive to minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in different
vocations.

Handicapped person, particularly the blinds suffer from inequalities.

The concept of disability is directly linked with societal attitudes towards disabled
person. The traditional societal attitude towards the disabled was one of pity,
sympathy and charity. The disabled were considered as incapable of leading
independent and productive lives. Under the traditional perception of disability, an
important element of the welfare of the disabled-recognition and respect of human
dignity and self esteem of the disabled persons was completely missing. The new
approach for the welfare of the disabled is directed at the socio-economic
integration of the disabled in the mainstream of active social life.

Present approach lays stress on psychological aspect of disability. It

alms at making disabled self-reliant. The economic-vocational approach is

48
concerned with the vocational limitations of the disabled and it is directed towards
vocational rehabilitation of the disabled.

The International Labour Organisation is the most ardent proponent

of this approach. The socio-political approach regards disability as a by-product of
interaction between individual and environment. It emphasises on the need for laws
to combat discrimination against the disabled.

In developing country, like ours, over all plight of disabled persons

is a gloomy picture. While treating a disabled person, we often forget that in
developing countries like ours, mostly children are victims of disability due to
poverty and malnutrition. On auspicious occasions, like marriages, religious
ceremonies or when a person starts journey to any other place, the presence of
person who suffered from such disabilities like blindness, is considered
inauspicious.

Handicapped person, particularly blinds carry with them a birth

mark and they are often ridiculed and insulted. Such an attitude deserves
deprecation. Public should be educated protest against such discriminatory
treatment meted out to the handicapped, but now concern for the improvement of
public health and prevention of diseases was manifested in various health related
provisions by the International agency.

The first international initiative with regard to the rehabilitation of

the disabled came from the International Labour Organisation, which came into
being in 1919 as an autonomous body associated with the League of Nations. As
back as 1921, for the first time, the International Labour Organisation turned its
attention towards the employment problems of the disabled persons. Since then, the
rights of the disabled lie at the very heart of its mission. A major part of the
International Labour Organisation activities for the rehabilitation of the disabled
consists of the adoption of international labour standards in the form of various
recommendations, conventions and resolutions in that regard. (Conventions and
Recommendations 1919-1949 Geneva-

49
 International Labour Office, 1949 and also International Labour
Conventions and Recommendations Geneva. International Labour Office, 1982).
The recent amongst such recommendations, included Vocational Rehabilitation and
Employment (Disabled Persons) Convention, 1983 (No. 159) and
Recommendation, 1983 (No. 168). The International Labour Organisation has
played an instrumental role in the field of vocational rehabilitation of the disabled.
Since the inception of the United Nations, the campaign for disability prevention
and rehabilitation gained recognition. The Incorporation of the human rights
provisions in the Charter of the United Nations and the adoption of the Universal
Declaration of Human Rights, followed by two covenants, namely the International
Covenant on Civil and Political rights and International Covenant on Economic.
Social and Cultural Rights, resolved to fight the menance of disability. The United
Nations through its resolutions namely ECOSOC Resolution 309E(XI) 13th July,
1953 on 'Social Rehabilitation of Physically Handicapped', ECOSOC Resolution
1068 (XXXIX) 30th July, 1965 on the 'Rehabilitation of Disabled Persons'. General
Assembly Resolution 2856 (XXVI) 20th December, 1971 on the 'Declaration on
the rights of Mentally Retarded Persons', and General Assembly Resolution 3447
(XXX) 9th December. 1975 on the 'Declaration on the Rights of Disabled Persons'
had laid down international norms, standards and guidelines concerning the rights
of the disabled persons. A number of specialised agencies, such as the International
Labour Organisation. The United Nations Educational. Scientific. Cultural
Organisation (UNESCO) The World Health Organisation, the United National
International Children Emergency Fund, have oriented their activities towards the
disability prevention and rehabilitation programme within the scope of their
organisations. In addition, other international bodies associated with the
rehabilitation programmes for the disabled include the United Nations
Development Programme, the Food Agricultural Organisations. The United Nations
Industrial Development Organisation, and the Office of the United Nations High
Commission for Refugees etc.

50
 Mr. Umesh Chandra, senior counsel appearing on behalf of
Lucknow Development Authority contended that even though India might have
ratified an International covenant and thereby had become a party to it, but he cited
some early decisions of Hon'ble Supreme Court, which were of the view that
international covenants and treaties have no direct binding effect on the municipal
law of that State unless and except to the extent it has been implemented by the
Legislature of that State or incorporated into its national Constitution because of the
doctrine of the national sovereignty, the municipal courts of a State, cannot enforce
any treaty to which it is a party.

Rehabilitation means the restoration of the disabled to the fullest

physical, mental, social, vocational and economic usefulness of which persons is
capable. In other words, rehabilitation is a goal oriented programme which alms at
enabling an impaired person to reach an optimum mental, physical, or social
functional level, which follows basically three aspects : Physical Rehabilitation.
Vocational Rehabilitation and Psycho-social integration of the disabled.

The physical and vocational rehabilitation cannot achieve desired

result, unless disabled feel himself psychologically integrated and the society is
willing to accept them as productive members. A disabled person not only suffers
from the agony of being physically handicapped, but also suffers from the malice
of being socially handicapped. Such person also faces adjustment problems of
different nature. A disabled suffers from feeling of insecurity both physical and
emotional. The false notions about disability in the mind of a common man,
deprived a disabled person of his right to lead a meaningful life, which results into
deep mental agony, physical discomfort, aversion, ridicule and scorn of the able-
bodied, which escalate emotional problems. Promotion of the rights of disabled
person, rehabilitation as well as integration are the main stream of social life and
are of paramount importance. Problems on disability is mere syndrome, the root
causes are inherent in mass poverty, social segregation and illiteracy. The only
permanent solution of disability problem, which a handicapped person faces, could

51
be their psycho-social and economic integration and proper placement which will
enable them to stand on their own with dignity and decency.

Problems faced by the disabled persons, attracted the attention of the

United Nations which marked the years 1983-1992 as a decade of disabled person
and a world programme of action concerning disabled persons was outlined. The
decade was also celebrated in India, too. Seminars and functions were organised in
large scale and with the help of World Health Organisation, immunisation
programme, vigorous campaign were launched to immunise the people from
diseases, which make them disabled. It is the obligation of the authorities to realise
that disability which a handicapped person suffers is not his creation, but may be
due to other factors, which we have enumerated in the foregoing paragraphs. It is
obligation of every citizen as well as of the State to instill amongst handicapped a
feeling that they are partners of men and women who do not suffer from such
disability. They deserve to be engaged and inspired to attain the height, which an
able person can attain in his life. With a view to fulfil its concomitant with the
decade of the disabled persons (1993-2002) convened by the Economic and Social
Commission held at Beijing during, 1st to 5th September, 1992, the Parliament
enacted Act. 1995. Thus proclamations, declarations and various resolutions, and
covenants, to which India is a party and a signatory, can be enforced by this Court
to the extent that those declarations, proclamations, resolutions and covenants have
been incorporated in the Act, 1995. Section 43 of the Act provides that the
appropriate Governments and local authorities shall, by notification, frame schemes
in favour of persons with disabilities, for the preferential allotment of land at
concessional rates of houses, setting up business, setting up of special recreation
centres, establishment of special schools, establishment of research centres and
establishment of factories by entrepreneurs with disabilities. It is, thus, evident that
if any reservation or concession to the handicapped persons, is provided by the State
or its instrumentality, that will be in consonance with the International
proclamations, declarations, resolutions and covenants made by the United Nations
Organisations and Section 43 of the Act, 1995.

52
 It is really unfortunate that the State Government as well as local
authorities, including the development bodies, have not framed a scheme in favour
of the persons who suffer from such disabilities. Non-framing of such a scheme
would not in any way negate the provisions of Section 43 of the Act, which clearly
lays down that such disabled persons will get preference in the matter of allotment
of land and houses at concessional rates. It is a matter of common knowledge that
the land and houses at concessional rates are given by the Lucknow Development
Authority to various other categories of persons like legislators, journalists, freedom
fighters, etc., and their own employees. Why the handicapped persons should be
denied the concessional rates for allotment of land and houses, has not been
indicated in the order passed by the Lucknow Development Authority. Only this
much has been indicated in the order of the Lucknow Development Authority dated
27.9.1999 that although the blind persons will get preference in the matter of
allotment but they will not be given any discount concession in the rates. This order
runs contrary to the provisions of Section 43 of the Act, referred to above. The
contention of the Lucknow Development Authority is that neither the State nor the
Lucknow Development Authority has framed any Scheme and notified the Scheme,
hence the handicapped persons cannot be given land or house on concessional rates.
Such a contention cannot be accepted. It was the obligation of the State Government
and all local bodies including the Development Authorities, to frame a Scheme and
notify the same. If they had not done so, they cannot take advantage of their own
wrong.

In view of what has been indicated hereinabove, the writ petition

deserves to be allowed. A writ in the nature of certiorari quashing the order passed
by the Lucknow Development Authority dated 27.9.1999 contained in Annexure-1,
is issued. The opposite party Nos. 1 and 3 are directed not only to give preference
in the matter of allotment of land and houses to handicapped persons, but also to
provide concessional rates to handicapped persons. The State Government as well
as the Lucknow Development Authority and other local bodies, who are engaged in
housing activities, are directed to frame a scheme in favour of persons who suffer

53
from disabilities, for preferential allotment of land and houses at concessional rates
and notify the same within a period of three months from the date of production of
a certified copy of this order. The Lucknow Development Authority is also directed
not to cancel the allotment of the petitioner No. 2 for the reason that he has not paid
the rate fixed, along with the interest, by the Lucknow Development Authority.

Case 2: People'S Union For Democratic Rights ... vs Union Of India & Others
on 18 September, 1982 - 1982 AIR 1473, 1983 SCR (1) 456, AIR 1982
SUPREME COURT 1473, 1982 (14) LAWYER 57 1982 SCC (L&S) 262, 1982
SCC (L&S) 262, AIRONLINE 1982 SC 75

This is a writ petition brought by way of public interest litigation in

order to ensure observance of the provisions of various labour laws in relation to
workmen employed in the construction work of various projects connected with the
Asian Games. The matter was brought to the attention of the Court by the 1st
petitioner which is an organisation formed for the purpose of protecting democratic
rights by means of a letter addressed to one of us (Bhagwati, J.). The letter was
based on a report made by a team of three social scientists who were commissioned
by the 1st petitioner for the purpose of investigating and inquiring into the
conditions under which the workmen engaged in the various Asiad Projects were
working. Since the letter addressed by the 1st petitioner was based on the report
made by three social scientists after personal investigation and study, it was treated
as a writ petition on the judicial side and notice was issued upon it inter alia to the
Union of India, Delhi Development Authority and Delhi Administration which were
arrayed as respondents to the writ petition. These respondents filed their respective
affidavits in reply to the allegations contained in the writ petition and an affidavit
was filed on behalf of the petitioner in rejoinder to the affidavits in reply and the
writ petition was argued before us on the basis of these pleadings.

Before we proceed to deal with the facts giving rise to this writ
petition, we may repeat what we have said earlier in various orders made by us from
time to time dealing with public interest litigation. We wish to point out with all the

54
emphasis at our command that public interest litigation which is a strategic arm of
the legal aid movement and which is intended to bring justice within the reach of
the poor masses, who constitute the low visibility area of humanity, is a totally
different kind of litigation from the ordinary traditional litigation which is
essentially of an adversary character where there is a dispute between two litigating
parties, one making claim or seeking relief against the other and that other opposing
such claim or resisting such relief. Public interest litigation is brought before the
court not for the purpose of enforcing the right of one individual against another as
happens in the case of ordinary litigation, but it is intended to promote and vindicate
public interest which demands that violations of constitutional or legal rights of
large numbers of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredressed.

That would be destructive of the Rule of Law which forms one of

the essential elements of public interest in any democratic form of government. The
Rule of Law does not mean that the protection of the law must be available only to
a fortunate few or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise of enforcement
of their civil and political rights. The poor too have civil and political rights and the
Rule of Law is meant for them also, though today it exists only on paper and not in
reality. If the sugar barons and the alcohol kings have the Fundamental Right to
carry on their business and to fatten their purses by exploiting the consuming public,
have the 'chamars' belonging to the lowest strata of society no Fundamental Right
to earn an honest living through their sweat and toil ?

The former can approach the courts with a formidable army of

distinguished lawyers paid in four or five figures per day and if their right to exploit
is upheld against the government under the label of Fundamental Right, the courts
are praised for their boldness and courage and their independence and fearlessness
are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless
victims of injustice is sought to be enforced by public interest litigation, the so
called champions of human rights frown upon it as waste of time of the highest

55
court in the land, which, according to them, should not engage itself in such small
and trifling matters. Moreover, these self-styled human rights activists forget that
civil and political rights, priceless and invaluable as they are for freedom and
democracy, simply do not exist for the vast masses of our people. Large numbers of
men, women and children who constitute the bulk of our population are today living
a sub-human existence in conditions of abject poverty: utter grinding poverty has
broken their back and sapped their moral fibre. They have no faith in the existing
social and economic system. What civil and political rights are these poor and
deprived sections of humanity going to enforce ? This was brought out forcibly by
W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration
of Human Rights at the Banaras Hindu University:

"Since India is one of those countries which has given a pride of

place to the basic human rights and freedoms in its Constitution in its chapter on
Fundamental Rights and on the Directive Principles of State Policy and has already
completed twenty-five years of independence, the question may be raised whether
or not the Fundamental Rights enshrined in our Constitution have any meaning to
the millions of our people to whom food, drinking water, timely medical facilities
and relief from disease and disaster, education and job opportunities still remain
unavoidable. We, in India, should on this occasion study the Human Rights declared
and defined by the United Nations and compare them with the rights available in
practice and secured by the law of our country."

The only solution for making civil and political rights meaningful to
these large sections of society would be to remake the material conditions and
restructure the social and economic order so that they may be able to realise the
economic, social and cultural rights. There is indeed close relationship between civil
and political rights on the one hand and economic, social and cultural rights on the
other and this relationship is so obvious that the International Human Rights
Conference in Tehran called by the General Assembly in 1968 declared in a final
proclamation:

56
 "Since human rights and fundamental freedoms are indivisible, the
full realisation of civil and political rights without the enjoyment of economic,
social and cultural rights is impossible."

Of course, the task of restructuring the social and economic order so

that the social and economic rights become a meaningful reality for the poor and
lowly sections of the community is one which legitimately belongs to the legislature
and the executive, but mere initiation of social and economic rescue programmes
by the executive and the legislature would not be enough and it is only through
multidimensional strategies including public interest litigation that these social and
economic rescue programmes can be made effective. Public interest litigation, as
we conceive it, is essentially a co-operative or collaborative effort on the part of the
petitioner, the State or public authority and the court to secure observance of the
constitutional or legal rights, benefits and privileges conferred upon the vulnerable
sections of the community and to reach social justice to them. The State or public
authority against whom public interest litigation is brought should be as much
interested in ensuring basic human rights, constitutional as well as legal, to those
who are in a socially and economically disadvantaged position, as the petitioner
who brings the public interest litigation before the Court. The state or public
authority which is arrayed as a respondent in public interest litigation should, in
fact, welcome it, as it would give it an opportunity to right a wrong or to redress an
injustice done to the poor and weaker sections of the community whose welfare is
and must be the prime concern of the State or the public authority.

There is a misconception in the minds of some lawyers, journalists

and men in public life that public interest litigation is unnecessarily cluttering up
the files of the court and adding to the already staggering arrears of cases which are
pending for long years and it should not therefore be encouraged by the court. This
is, to our mind, a totally perverse view smacking of elitist and status quoist
approach. Those who are decrying public interest litigation do not seem to realise
that courts are not meant only for the rich and the well-to-do, for the landlord and
the gentry, for the business magnate and the industrial tycoon, but they exist also

57
for the poor and the down-trodden the have-nots and the handicapped and the half-
hungry millions of our countrymen. So far the courts have been used only for the
purpose of vindicating the rights of the wealthy and the affluent. It is only these
privileged classes which have been able to approach the courts for protecting their
vested interests. It is only the moneyed who have so far had the golden key to unlock
the doors of justice. But, now for the first time the portals of the court are being
thrown open to the poor and the down- trodden, the ignorant and the illiterate, and
their cases are coming before the courts through public interest litigation which has
been made possible by the recent judgment delivered by this Court in Judges
Appointment and Transfer cases. Millions of persons belonging to the deprived and
vulnerable sections of humanity are looking to the courts for improving their life
conditions and making basic human rights meaningful for them. They have been
crying for justice but their cries have so far been in the wilderness. They have been
suffering injustice silently with the patience of a rock, without the strength even to
shed any tears. Mahatma Gandhi once said to Gurudev Tagore, "I have had the pain
of watching birds, who for want of strength could not be coaxed even into a flutter
of their wings. The human bird under the Indian sky gets up weaker than when he
pretended to retire. For millions it is an eternal trance."

This is true of the 'human bird' in India even today after more than
30 years of independence. The legal aid movement and public interest litigation
seek to bring justice to these forgotten specimens of humanity who constitute the
bulk of the citizens of India and who are really and truly the "People of India" who
gave to themselves this magnificent Constitution. It is true that there are large
arrears pending in the courts but, that cannot be any reason for denying access to
justice to the poor and weaker sections of the community. No State has a right to
tell its citizens that because a large number of cases of the rich and the well-to-do
are pending in our courts, we will not help the poor to come to the courts for seeking
justice until the staggering load of cases of people who can afford, is disposed of.
The time has now come when the courts must become the courts for the poor and
struggling masses of this country They must shed their character as upholders of the

58
established order and the status quo. They must be sensitised to the need of doing
justice to the large masses of people to whom justice has been denied by a cruel and
heartless society for generations. The realisation must come to them that social
justice is the signature tune of our Constitution and it is their solemn duty under the
Constitution to enforce the basic human rights of the poor and vulnerable sections
of the community and actively help in the realisation of the constitutional goals.
This new change has to come if the judicial system is to become an effective
instrument of social justice, for without it, it cannot survive for long. Fortunately,
this change is gradually taking place and public interest litigation is playing a large
part in bringing about this change. It is through public interest litigation that the
problems of the poor are now coming to the fore front and the entire theatre of the
law is changing. It holds out great possibilities for the future. This writ petition is
one such instance of public interest litigation.

The Asian Games take place periodically in different parts of Asia

and this time India is hosting the Asian Games. It is a highly prestigious undertaking
and in order to accomplish it successfully according to international standards, the
Government of India had to embark upon various construction projects which
included building of fly-overs, stadia, swimming pool, hotels and Asian Games
village complex. This construction work was framed out by the Government of
India amongst various Authorities such as the Delhi Administration, the Delhi
Development Authority and the New Delhi Municipal Committee. It is not
necessary for the purpose of the present writ petition to set out what particular
project was entrusted to which authority because it is not the purpose of this writ
petition to find fault with any particular authority for not observing the labour laws
in relation to the workmen employed in the projects which are being executed by it,
but to ensure that in future the labour laws are implemented and the rights of the
workers under the labour laws are not violated. These various authorities to whom
the execution of the different projects was entrusted engaged contractors for the
purpose of carrying out the construction work of the projects and they were
registered as principal employers under section 7 of the Contract Labour

59
(Regulation and Abolition) Act, 1970. The contractors started the construction work
of the projects and for the purpose of carrying out the construction work, they
engaged workers through jamadars. The jamadars brought the workers from
different parts of India and particularly the States of Rajasthan, Uttar Pradesh and
Orissa and got them employed by the contractors. The workers were entitled to a
minimum wage of Rs.

Per day, that being the minimum wage fixed for workers employed
on the construction of roads and in building operations but the case of the petitioners
was that the workers were not paid this minimum wage and they were exploited by
the contractors and the jamadars. The Union of India in the affidavit reply filed on
its behalf by Madan Mohan; Under Secretary, Ministry of Labour asserted that the
contractors did pay the minimum wage of Rs. 9.25 per day but frankly admitted that
this minimum wage was paid to the jamadars through whom the workers were
recruited and the jamadars deducted rupee one per day per worker as their
commission and paid only Rs. 8.25 by way of wage to the workers. The result was
that in fact the workers did not get the minimum wage of Rs. 9.25 per day.

The petitioners also alleged in the writ petition that the provisions of
the Equal Remuneration Act, 1976 were violated and women workers were being
paid only Rs. 7/- per day and the balance of the amount of the wage was being
misappropriated by the jamadars. It was also pointed out by the petitioners that there
was violation of Article 24 of the Constitution and of the provisions of
the Employment of Children Act, 1938 in as much as children below the age of 14
years were employed by the contractors in the construction work of the various
projects. The petitioners also alleged violation of the provisions of the Contract
Labour (Regulation and Abolition) Act 1970 and pointed out various breaches of
those provisions by the contractors which resulted in deprivation and exploitation
of the workers employed in the construction work of most of the projects. It was
also the case of the petitioners that the workers were denied proper living conditions
and medical and other facilities to which they were entitled under the provisions of
the Contract Labour (Regulation and Abolition) Act 1970. The petitioners also

60
complained that the contractors were not implementing the provisions of the Inter
State Migrant Workmen (Regulation of Employment and Conditions of Service)
Act 1979 though that Act was brought in force in the Union Territory of Delhi as
far back as 2nd October 1980. The report of the team of three social scientists on
which the writ petition was based set out various instances of violations of the
provisions of the Minimum Wages Act, 1948, the Equal Remuneration
Act 1976, Article 24 of the Constitution, The Employment of Children Act 1970,
and the Inter State Migrant Workmen (Regulation of Employment and Conditions
of Service) Act 1979.

These averments made on behalf of the petitioners were denied in

the affidavits in reply filed on behalf of the Union of India, the Delhi Administration
and the Delhi Development Authority. It was asserted by these authorities that so
far as the Equal Remuneration Act 1976 and the Contract Labour (Regulation and
Abolition) Act 1970 were concerned, the provisions of these labour laws were being
complied with by the contractors and whenever any violations of these labour laws
were brought to the attention of the authorities as a result of periodical inspections
carried out by them, action by way of prosecution was being taken against the
contractors. The provisions of the Minimum Wages Act 1948 were, according to the
Delhi Development Authority, being observed by the contractors and it was pointed
out by the Delhi Development Authority in its affidavit in reply that the construction
work of the projects entrusted to it was being carried out by the contractors under a
written contract entered into with them and this written contract incorporated
"Model Rules for the Protection of Health and Sanitary Arrangements for Workers
employed by Delhi Development Authority or its Contractors" which provided for
various facilities to be given to the workers employed in the construction work and
also ensured to them payment of minimum wage The Delhi Administration was not
so categorical as the Delhi Development Authority in regard to the observance of
the provisions of the Minimum Wages Act 1948 and in its affidavit in reply it
conceded that the jamadars through whom the workers were recruited might be
deducting rupee one per day per worker from the minimum wage payable to the

61
workers. The Union of India was however more frank and it clearly admitted in its
affidavit in reply that the jamadars were deducting rupee one per day per worker
from the wage payable to the workers with the result that the workers did not get
the minimum wage of Rs. 9.25 per day and there was violation of the provisions of
the Minimum Wages Act, 1948.

So far as the Employment of Children Act 1938 is concerned the

case of the Union of India, the Delhi Administration and the Delhi Development
Authority was that no complaint in regard to the violation of the provisions of that
Act was at any time received by them and they disputed that there was any violation
of these provisions by the contractors. It was also contended on behalf of these
Authorities that the Employment of Children Act 1938 was not applicable in case
of employment in the construction work of these projects, since construction
industry is not a process specified in the Schedule and is therefore not within the
provisions of sub-section (3) of section 3 of that Act. Now unfortunately this
contention urged on behalf of the respondents is well founded, because construction
industry does not find a place in the Schedule to the Employment of Children
Act 1938 and the prohibition enacted in section 3 sub-section (3) of that Act against
the employment of a child who has not completed his fourteenth year cannot apply
to employment in construction industry.

This is a sad and deplorable omission which, we think, must be

immediately set right by every State Government by amending the Schedule so as
to include construction industry in it in exercise of the power conferred
under section 3A of the Employment of Children Act, 1938. We hope and trust that
every State Government will take the necessary steps in this behalf without any
undue delay, because construction work is clearly a hazardous occupation and it is
absolutely essential that the employment of children under the age of 14 years must
be prohibited in every type of construction work. That would be in consonance with
Convention No. 59 adopted by the International Labour Organisation and ratified
by India. But apart altogether from the requirement of Convention No. 59, we
have Article 24 of the Constitution which provides that no child below the age of

62
14 shall be employed to work in any factory or mine or engaged in any other
hazardous employment. This is a constitutional prohibition which, even if not
followed up by appropriate legislation, must operate proprio vigore and
construction work being plainly and indubitably a hazardous employment, it is clear
that by reason of this constitutional prohibition, no child below the age of 14 years
can be allowed to be engaged in construction work. There can therefore be no doubt
that notwithstanding the absence of specification of construction industry in
the Schedule to the Employment of Children Act 1938, no child below the age of
14 years can be employed in construction work and the Union of India as also every
State Government must ensure that this constitutional mandate is not violated in
any part of the country. Here, of course, the plea of the Union of India, the Delhi
Administration and the Delhi Development Authority was that no child below the
age of 14 years was at any time employed in the construction work of these projects
and in any event no complaint in that behalf was received by any of these
Authorities and hence there was no violation of the constitutional prohibition
enacted in Article 24.

So far as the complaint in regard to non-observance of the provisions

of the Inter State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act 1979 was concerned, the defence of the Union of India, the Delhi
Administration and the Delhi Development Authority that though this Act had come
into force in the Union Territory of Delhi with effect from 2nd October 1980, the
power to enforce the provisions of the Act was delegated to the Administrator of the
Union Territory of Delhi only on 14th July 1981 and thereafter also the provisions
of the Act could not been enforced because the Rules to be made under the Act had
not been finalised until 4th June 1982. It is difficult to understand as to why in the
case of beneficient legislation like the Inter State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act 1979 it should have taken more than
18 months for the Government of India to delegate the power to enforce the
provisions of the Act to the Administrator of the Union Territory of Delhi and
another almost 12 months to make the Rules under the Act. It was well known that

63
a large number of migrant workmen coming from different States were employed
in the construction work of various Asiad projects and if the provisions of a social
welfare legislation like the Inter State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act 1979 were applied and the benefit of
such provisions made available to these migrant workmen, it would have gone a
long way towards ameliorating their conditions of work and ensuring them a decent
living with basic human dignity. We very much wished that the provisions of this
Act had been made applicable earlier to the migrant workmen employed in the
construction work of these projects though we must confess that we do not see why
the enforcement of the provisions of the Act should have been held up until the
making of the Rules. It is no doubt true that there are certain provisions in the Act
which cannot be enforced unless there are rules made under the Act but equally
there are other provisions which do not need any prescription by the Rules for their
enforcement and these latter provisions could certainly have been enforced by the
Administrator of the Union Territory of Delhi in so far as migrant workmen
employed in these projects were concerned.

There can be no doubt that in any event from and after 4th June,
1982 the provisions of this beneficient legislation have become enforceable and the
migrant workmen employed in the construction work of these projects are entitled
to the rights and benefits conferred upon them under those provisions. We need not
point out that so far as the rights and benefits conferred upon migrant workmen
under the provisions of section 13 to 16 of the Act are concerned, the responsibility
for ensuring such rights and benefits rests not only on the contractors but also on
the Union of India, the Delhi Administration or the Delhi Development Authority
who is the principal employer in relation to the construction work entrusted by it to
the contractors. We must confess that we have serious doubts whether the provisions
of this Act are being implemented in relation to the migrant workmen employed in
the construction work of these projects and we have therefore by our Order dated
11th May 1982 appointed three Ombudsmen for the purpose of making periodic

64
inspection and reporting to us whether the provisions of this Act are being
implemented at least from 4th June 1982.

We must in fairness point out that the Union of India has stated in its
affidavit in reply that a number of prosecution have been launched against the
contractors for violations of the provision of various labour laws and in Annexure I
to its affidavit in reply it has given detailed particulars of such prosecutions. It is
apparent from the particulars given in this Annexure that the prosecutions launched
against the contractors were primarily for offences such as non-maintenance of
relevant registers non-provision of welfare and health facilities such as first aid box,
latrines, urinals etc. and non-issue of wage slips. We do not propose to go into the
details of these prosecutions launched against the contractors but we are shocked to
find that in cases of violations of labour laws enacted for the benefit of workmen,
the Magistrates have been imposing only small fines of Rs. 200/- thereabouts.

The Magistrates seem to view the violations of labour laws with

great indifference and unconcern as if they are trifling offences undeserving of
judicial severity. They seem to over-look the fact labour laws are enacted for
improving the conditions of workers and the employers cannot be allowed to buy
off immunity against violations of labour laws by paying a paltry fine which they
would not mind paying, because by violations the labour laws they would be
making profit which would far exceed the amount of the fine. If violations of labour
laws are going to be punished only by meagre fines, it would be impossible to
ensure observance of the labour laws and the labour laws would be reduced to
nullity. They would remain merely paper tigers without any teeth or claws. We
would like to impress upon the Magistrates and Judges in the country that violations
of labour laws must be viewed with strictness and whenever any violations of labour
laws are established before them, they should punish the errant employers by
imposing adequate punishment.

We may conveniently at this stage, before proceeding to examine the

factual aspects of the case, deal with two preliminary objections raised on behalf of

65
the respondents against the maintainability of the writ petition. The first preliminary
objection was that the petitioners had no locus standi to maintain the writ petition
since, even on the averments made in the writ petition, the rights said to have been
violated were those of the workers employed in the construction work of the various
Asiad projects and not of the petitioners and the petitioners could not therefore have
any cause of action. The second preliminary objection urged on behalf of the
respondents was that in any event no writ petition could lie against the respondents,
because the workmen whose rights were said to have been violated were employees
of the contractors and not of the respondents and the cause of action of the workmen,
if any, was therefore against the contractors and not against the respondents. It was
also contended as part of this preliminary objection that no writ petition
under article 32 of the Constitution could lie against the respondents for the alleged
violations of the rights of the workmen under the various labour laws, and the
remedy, if any, was only under the provisions of those laws. These two preliminary
objections were pressed before us on behalf of the Union of India, the Delhi
Administration and the Delhi Development Authority with a view to shutting out
an inquiry by this Court into the violations of various labour laws alleged in the writ
petition, but we do not think there is any substance in them and they must be
rejected. Our reasons for saying so are as follows:

The first preliminary objection raises the question of locus standi of

the petitioners to maintain the writ petition. It is true, that the complaint of the
petitioners in the writ petition is in regard to the violations of the provisions of
various labour laws designed for the welfare of workmen and therefore from a
strictly traditional point of view, it would be only the workmen whose legal rights
are violated who would be entitled to approach the court for judicial redress. But
the traditional rule of standing which confines access to the judicial process only to
those to whom legal injury is caused or legal wrong is done has now been jettisoned
by this Court and the narrow confines within which the rule of standing was
imprisoned for long years as a result of inheritance of the Anglo-Saxon System of
jurisprudence have been broken and a new dimension has been given to the doctrine

66
of locus standi which has revolutionised the whole concept of access to justice in a
way not known before to the Western System of jurisprudence. This Court has taken
the view that, having regard to the peculiar socioeconomic conditions prevailing in
the country where there is, considerable poverty, illiteracy and ignorance
obstructing and impeding accessibility to the judicial process, it would result in
closing the doors of justice to the poor and deprived sections of the community if
the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a
person wronged can sue for judicial redress were to be blindly adhered to and
followed, and it is therefore necessary to evolve a new strategy by relaxing this
traditional rule of standing in order that justice may became easily available to the
lowly and the lost. It has been held by this Court in its recent judgment in the Judges
Appointment and Transfer case, in a major break-through which in the years to
come is likely to impart new significance and relevance to the judicial system and
to transform it into as instrument of socio-economic change, that where a person or
class of persons to whom legal injury is caused or legal wrong is done is by reason
of poverty, disability or socially or economically disadvantaged position not able to
approach the Court for judicial redress, any member of the public acting bona fide
and not out of any extraneous motivation may move the Court for judicial redress
of the legal injury or wrong suffered by such person or class of persons and the
judicial process may be set in motion by any public spirited individual or institution
even by addressing a letter to the court.

Where judicial redress is sought of a legal injury or legal wrong

suffered by a person or class of persons who by reason of poverty, disability or
socially or economically disadvantaged position are unable to approach the court
and the court is moved for this purpose by a member of a public by addressing a
letter drawing the attention of the court to such legal injury or legal wrong, court
would cast aside all technical rules of procedure and entertain the letter as a writ
petition on the judicial side and take action upon it. That is what has happened in
the present case. Here the workmen whose rights are said to have been violated and
to whom a life of basic human dignity has been denied are poor, ignorant, illiterate

67
humans who, by reason of their poverty and social and economic disability, are
unable to approach the courts for judicial redress and hence the petitioners, have
under the liberalised rule of standing, locus standi to maintain the present writ
petition espousing the cause of the workmen. It is not the case of the respondents
that the petitioners are acting mala fide or out of extraneous motives and in fact the
respondents cannot so allege, since the first petitioner is admittedly an organisation
dedicated to the protection and enforcement of Fundamental Rights and making
Directive Principles of State Policy enforceable and justiciable. There can be no
doubt that it is out of a sense of public service that the present litigation has been
brought by the petitioners and it is clearly maintainable.

We must then proceed to consider the first limb of the second

preliminary objection. It is true that the workmen whose cause has been championed
by the petitioners are employees of the contractors but the Union of India, the Delhi
Administration and the Delhi Development Authority which have entrusted the
construction work of Asiad projects to the contractors cannot escape their obligation
for observance of the various labour laws by the contractors. So far as the Contract
Labour (Regulation and Abolition) Act 1970 is concerned, it is clear that
under section 20, if any amenity required to be provided under sections
16, 17, 18 or 19 for the benefit of the workmen employed in an establishment is not
provided by the contractor, the obligation to provide such amenity rests on the
principal employer and therefore if in the construction work of the Asiad projects,
the contractors do not carry out the obligations imposed upon them by any of these
sections, the Union of India, the Delhi Administration and the Delhi Development
Authority as principal employers would be liable and these obligations would be
enforceable against them.

The same position obtains in regard to the Inter State Migrant

Workmen (Regulation of Employment and Conditions of Service) Act 1979. In the
case of this Act also, sections 17 and 18 make the principal employer liable to make
payment of the wages to the migrant workmen employed by the contractor as also
to pay the allowances provided under sections 14 and 15 and to provide the

68
facilities specified in section 16 to such migrant workmen, in case the contractor
fails to do so and these obligations are also therefore clearly enforceable against the
Union of India, the Delhi Administration and the Delhi Development Authority as
principal employers. So far as Article 24 of the Constitution is concerned, it
embodies a fundamental right which is plainly and indubitably enforceable against
every one and by reason of its compulsive mandate, no one can employ a child
below the age of 14 years in a hazardous employment and since, as pointed out
above, construction work is a hazardous employment, no child below the age of 14
years can be employed in construction work and there fore, not only are the
contractors under a constitutional mandate not to employ any child below the age
of 14 years, but it is also the duty of the Union of India, the Delhi Administration
and the Delhi Development Authority to ensure that this constitutional obligation is
obeyed by the contractors to whom they have entrusted the construction work of
the various Asiad projects.

The Union of India, the Delhi Administration and the Delhi

Development Authority cannot fold their hands in despair and become silent
spectators of the breach of a constitutional prohibition being committed by their
own contractors. So also with regard to the observance of the provisions of
the Equal Remuneration Act 1946, the Union of India, the Delhi Administration and
the Delhi Development Authority cannot avoid their obligation to ensure that these
provisions are complied with by the contractors. It is the principle of equality
embodied in Article 14 of the Constitution which finds expression in the provisions
of the Equal Remuneration Act 1946 and if the Union of India, the Delhi
Administration or the Delhi Development Authority at any time finds that the
provisions of the Equal Remuneration Act 1946 are not observed and the principles
of equality before the law enshrined in Article 14 is violated by its own contractors,
it cannot ignore such violation and sit quiet by adopting a non-interfering attitude
and taking shelter under the executive that the violation is being committed by the
contractors and not by it. If any particular contractor is committing a breach of the
provisions of the Equal Remuneration Act 1946 and thus denying equality before

69
the law to the workmen, the Union of India, the Delhi Administration or the Delhi
Development Authority as the case may be, would be under an obligation to ensure
that the contractor observes the provisions of the Equal Remuneration Act 1946 and
does not breach the equality clause enacted in Article 14. The Union of India, the
Delhi Administration and the Delhi Development Authority must also ensure that
the minimum wage is paid to the workmen as provided under the Minimum Wages
Act 1948. The contractors are, of course, liable to pay the minimum wage to the
workmen employed by them but the Union of India the Delhi Administration and
the Delhi Development Authority who have entrusted the construction work to the
contractors would equally be responsible to ensure that the minimum wage is paid
to the workmen by their contractors. This obligation which even otherwise rests on
the Union of India, the Delhi Administration and the Delhi Development Authority
is additionally re-inforced by section 17 of the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979 in so far as
migrant workmen are concerned. It is obvious, therefore, that the Union of India,
the Delhi Administration and the Delhi Development Authority cannot escape their
obligation to the workmen to ensure observance of these labour laws by the
contractors and if these labour laws are not complied with by the contractors, the
workmen would clearly have a cause of action against the Union of India, the Delhi
Administration and the Delhi Development Authority.

That takes us to a consideration of the other limb of the second

preliminary objection. The argument of the respondents under this head of
preliminary objection was that a writ petition under Article 32 cannot be maintained
unless it complains of a breach of some fundamental right or the other and since
what were alleged in the present writ petition were merely violations of the labour
laws enacted for the benefit of the workmen and not breaches of any fundamental
rights, the present writ petition was not maintainable and was liable to be dismissed.
Now it is true that the present writ petition cannot be maintained by the petitioners
unless they can show some violation of a fundamental right, for it is only for
enforcement of a fundamental right that a writ petition can be maintained in this

70
Court under Article 32. So far we agree with the contention of the respondents but
there our agreement ends. We cannot accept the plea of the respondents that the
present writ petition does not complain of any breach of a fundamental right. The
complaint of violation of Article 24 based on the averment that children below the
age of 14 years are employed in the construction work of the Asiad projects is
clearly a complaint of violation of a fundamental right. So also when the petitioners
allege non- observance of the provisions of the Equal Remuneration Act 1946, it is
in effect and substance a complaint of breach of the principle of equality before the
law enshrined in Article 14 and it can hardly be disputed that such a complaint can
legitimately form the subject matter of a writ petition under Article 32. Then there
is the complaint of non-observance of the provisions of the Contract Labour
(Regulation & Abolition) Act 1970 and the Inter State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act 1979 and this is also in
our opinion a complaint relating to violation of Article 21.

This Article has acquired a new dimension as a result of the decision

of this Court in Maneka Gandhi v. Union of India (1) and it has received its most
expansive interpretation in Francis Coralie Mullin v. The Administrator, Union
Territory of Delhi & Ors,(2) where it has been held by this Court that the right to
life guaranteed under this Article is not confined merely to physical existence or to
the use of any faculty or limb through which life is enjoyed or the soul
communicates with outside world but it also includes within its scope and ambit the
right to live with basic human dignity and the State cannot deprive any one of this
precious and invaluable right because no procedure by which such deprivation may
be effected can ever be regarded as reasonable, fair and just. Now the rights and
benefits conferred on the workmen employed by a contractor under the provisions
of the Contract Labour (Regulation and Abolition) Act 1970 and the Inter State
Migrant Workmen (Regulation of Employment and Conditions of Service) Act,
1979 are clearly intended to ensure basic human dignity to the workmen and if the
workmen are deprived of any of these rights and benefits to which they are entitled
under the provisions of these two pieces of social welfare legislation, that would

71
clearly be a violation of Article 21 by the Union of India, the Delhi Administration
and the Delhi Development Authority which, as principal employers, are made
statutorily responsible for securing such rights and benefits to the workmen. That
leaves for consideration the complaint in regard to non- payment of minimum wage
to the workmen under the Minimum Wages Act 1948. We are of the view that this
complaint is also one relating to breach of a fundamental right and for reasons which
we shall presently state, it is the fundamental right enshrined in Article 23 which is
violated by non-payment of minimum wage to the workmen.

Article 23 enacts a very important fundamental right in the following

terms : "Art. 23 : Prohibition of traffic in human beings and forced labour- (1)
Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law. (2) Nothing in this Article shall prevent the State from
imposing compulsory service for public purposes, and in imposing such service the
State shall not make any discrimination on grounds only of religion, race, caste or
class or any of them.

Now many of the fundamental rights enacted in Part III operate as

limitations on the power of the State and impose negative obligations on the State
not to encroach on individual liberty and they are enforceable only against the State.
But there are certain fundamental rights conferred by the Constitution which are
enforceable against the whole world and they are to be found inter alia in Articles
17, 23 and 24. We have already discussed the true scope and ambit of Article 24 in
an earlier portion of this judgment and hence we do not propose to say anything
more about it. So also we need not expatiate on the proper meaning and effect of
the fundamental right enshrined in Article 17 since we are not concerned with that
Article in the present writ petition. It is Article 23 with which we are concerned and
that Article is clearly designed to protect the individual not only against the State
but also against other private citizens. Article 23 is not limited in its application
against the State but it prohibits "traffic in human beings and begar and other similar
forms of forced labour" practised by anyone else. The sweep of Article 23 is wide

72
and unlimited and it strikes at traffic in human beings and begar and other similar
forms of forced labour" wherever they are found. The reason for enacting this
provision in the chapter on fundamental rights is to be found in the socio-economic
condition of the people at the time when the Constitution came to be enacted. The
Constitution makers, when they set out to frame the Constitution, found that they
had the enormous task before them of changing the socio- economic structure of
the country and bringing about socio- economic regeneration with a view to
reaching social and economic justice to the common man. Large masses of people,
bled white by well nigh two centuries of foreign rule, were living in abject poverty
and destitution with ignorance and illiteracy accentuating their helplessness and
despair. The society had degenerated into a status-oriented hierarchical society with
little respect for the dignity of individual who was in the lower rungs of the social
ladder or in an economically impoverished condition. The political revolution was
completed and it had succeeded in bringing freedom to the country but freedom was
not an end in itself, it was only a means to an end, the end being the raising of the
people to higher levels of achievement and bringing about their total advancement
and welfare. Political freedom had no meaning unless it was accompanied by social
and economic freedom and it was therefore necessary to carry forward the social
and economic revolution with a view to creating social economic conditions in
which every one would be able to enjoy basic human rights and participate in the
fruits of freedom and liberty in an egalitarian social and economic framework.

It was with this end in view that the constitution makers enacted the
Directive Principles of State Policy in Part IV of the Constitution setting out the
constitutional goal of a new socio-economic order. Now there was one feature of
our national life which was ugly and shameful and which cried for urgent attention
and that was the existence of bonded or forced labour in large parts of the country.
This evil was the relic of feudal exploitative society and it was totally incompatible
with the new egalitarian socio-economic order which, "We the people of India"
were determined to build and constituted a gross and most revolting denial of basic
human dignity. It was therefore necessary to eradicate this pernicious practice and

73
wipe it out altogether from the national scene and this had to be done immediately
because with the advent of freedom, such practice could not be allowed to continue
to blight the national life any longer. Obviously, it would not have been enough
merely to include abolition of forced labour in the Directive Principles of State
Policy, because then the outlaying of this practice would not have been legally
enforceable and it would have continued to plague our national life in violation of
the basic constitutional norms and values until some appropriate legislation could
be brought by the legislature forbidding such practice. The Constitution makers
therefore decided to give teeth to their resolve to obliterate and wipe out this evil
practice by enacting constitutional prohibition against it in the chapter on
fundamental rights, so that the abolition of such practice may become enforceable
and effective as soon as the Constitution came into force. This is the reason why the
provision enacted in Article 23 was included in the chapter on fundamental rights.
The prohibition against "traffic in human beings and begar and other similar forms
of forced labour"

Is clearly intended to be a general prohibition, total in its effect and

all pervasive in its range and it is enforceable not only against the State but also
against any other person indulging in any such practice.

The question then is as to what is the true scope and meaning of the
expression "traffic in human beings and begar and other similar forms of forced
labour" in Article 237 What are the forms of 'forced labour' prohibited by that
Article and what kind of labour provided by a person can be regarded as 'forced
labour' so as to fall within this prohibition ?

When the Constitution makers enacted Article 23 they had before

them Article of the Universal Declaration of Human Rights but they deliberately
departed from its language and employed words which would make the reach and
content of Article 23 much wider than- that of Article 4 of the Universal
Declaration of Human Rights. They banned 'traffic in human beings which is an
expression of much larger amplitude than "slave trade" and they also interdicted

74
"begar and other similar forms of forced labour". The question is what is the scope
and ambit of the expression 'begar and other similar forms of forced labour ?" In
this expression wide enough to include every conceivable form of forced labour and
what is the true scope and meaning of the words ''forced labour ?" The word 'begar'
in this Article is not a word of common use in English language. It is a word of
Indian origin which like many other words has found its way in the English
vocabulary. It is very difficult to formulate a precise definition of the word begar'
but there can be no doubt that it is a form of forced labour under which a person is
compelled to work without receiving any remuneration. Molesworth describes
'begar' as "labour or service exacted by a government or person in power without
giving remuneration for it." Wilson's glossary of Judicial and Revenue Terms gives
the following meaning of the word 'begar': "a forced labourer, one pressed to carry
burthens for individuals or the public. Under the old system, when pressed for
public service, no pay was given.

The Begari, though still liable to be pressed for public objects, now
receives pay: Forced labour for private service is prohibited." "Begar" may
therefore be loosely described as labour or service which a person is forced to give
without receiving any remuneration for 'it. That was the meaning of the word 'begar'
accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D.
Mital.(1) 'Begar' is thus clearly a film of forced labour. Now it is not merely 'begar'
which is unconstitutionally prohibited by Article 23 but also all other similar forms
of forced labour. This Article strikes at forced labour in whatever form it may
manifest itself, because it is violative of human dignity and is contrary to basic
human values. The practice of forced labour is condemned in almost every
international instrument dealing with human rights.

It is interesting to find that as far back as 1930 long before the

Universal Declaration of Human Rights came into being, International Labour
organisation adopted Convention No. 29 laying down that every member of the
International Labour organisation which ratifies this convention shall "suppress the
use of forced or compulsory labour in all its forms" and this prohibition was

75
elaborated in Convention No. 105 adopted by the International Labour organisation
in 1957. The words "forced or compulsory labour" in Convention No. 29 had of
course a limited meaning but that was so on account of the restricted definition of
these words given in Article 2 of the Convention. Article 4 of the European
Convention of Human Rights and Article 8 of the International Covenant on Civil
and Political Rights also prohibit forced or compulsory labour. Article 23 is in the
same strain and it enacts a prohibition against forced labour in whatever form it may
be found. The learned counsel appearing on behalf of the respondent laid some
emphasis on the word 'similar' and contended that it is not every form of forced
labour which is prohibited by Article 23 but only such form of forced labour as is
similar to 'begar' and since 'begar' means labour or service which a person is forced
to give without receiving any remuneration for it, the interdict of Article 23 is
limited only to those forms of forced labour where labour or service is exacted from
a person without paying any remuneration at all and if some remuneration is paid,
though it be inadequate, it would not fall within the words 'other similar forms of
forced labour. This contention seeks to unduly restrict the amplitude of the
prohibition . against forced labour enacted in Article 23 and is in our opinion not
well founded. It does not accord with the principle enunciated by this Court
in Maneka Gandhi v. Union of India(2) that when interpreting the provisions of the
Constitution conferring fundamental rights, the attempt of the court should be to
expand the reach and ambit of the fundamental rights rather than to attenuate their
meaning and content.

It is difficult to imagine that the Constitution makers should have

intended to strike only at certain forms of forced labour leaving it open to the
socially or economically powerful sections of the community to exploit the poor
and weaker sections by resorting to other forms of forced labour. Could there be
any logic or reason in enacting that if a person is forced to give labour or service to
another without receiving any remuneration at all it should be regarded as a
pernicious practice sufficient to attract the condemnation of Article 23, but if some
remuneration is paid for it, then it should be outside the inhibition of that Article ?

76
If this were the true interpretation, Article 23 would be reduced to a mere rope of
sand, for it would then be the easiest thing in an exploitative society for a person
belonging to a socially or economically dominant class to exact labour or service
from a person belonging to the deprived and vulnerable section of the community
by paying a negligible amount of remuneration and thus escape the rigour of Article
23. We do not think it would be right to place on the language of Article 23 an
interpretation which would emasculate its beneficent provisions and defeat the very
purpose of enacting them. We are clear of the view that Article 23 is intended to
abolish every form of forced labour. The words "other similar forms of forced
labour are used in Article 23 not with a view to importing the particular
characteristic of 'begar' that labour or service should be exacted without payment of
any remuneration but with a view to bringing within the scope and ambit of that
Article all other forms of forced labour and since 'begar' is one form of forced
labour, the Constitution makers used the words "other similar forms of forced
labour."

If the requirement that labour or work should be exacted without

any remuneration were imported in other forms of forced labour, they p would
straightaway come within the meaning of the word 'begar' and in that event there
would be no need to have the additional words "other similar forms of forced
labour." These words would be rendered futile and meaningless and it is a well
recognised rule of interpretation that the court should avoid a construction which as
the effect of rendering any words used by the legislature superfluous or redundant.
The object of adding these words was clearly to expand the reach and content
of Article 23 by including, in addition to 'begar', other forms of forced labour within
the prohibition of that Article. Every form of forced labour 'begar' or otherwise, is
within the inhibition of Article 23 and it makes no difference whether the per-son
who is forced to give his labour or service to another is remunerated or not. Even if
remuneration is paid, labour supplied by a person would be hit by this Article if it
is forced labour, that is, labour supplied not willingly but as a result of force or
compulsion. Take for example a case where a person has entered into a contract of

77
service with another for a period of three years and he wishes to discontinue serving
such other person before the expiration of the period of three years. If a law were to
provide that in such a case the contract shall be specifically enforced and he shall
be compelled to serve for the full period of three years, it would clearly amount to
forced labour and such a law would be void as offending Article 23. That is why
specific performance of a contract of service cannot be enforced against an
employee and the employee cannot be forced by compulsion of law to continue to
serve the employer. Of course, if there is a breach of the contract of service, the
employee would be liable to pay damages to the employer but he cannot be forced
to continue to serve the employer without breaching the injunction of Article
23. This was precisely the view taken by the Supreme Court of United States in
Bailv v. Alabama(1) while dealing with a similar provision in the Thirteenth
Amendment.

There, a legislation enact ed by the Alabama State providing that

when a person with intent to injure or defraud his employer enters into a contract in
writing for the purpose of any service and obtains money or other property from the
employer and without refunding the money or the property refuses or fails to
perform such service, he will be punished with of fine. The constitutional validity
of this legislation was challenged on the ground that it violated the Thirteenth
Amendment which inter alia provides: "Neither slavery nor involuntary servitude
shall exist within the United States or any place subject to their jurisdiction". This
challenge was upheld by a majority of the Court and Mr. Justice Hughes delivering
the majority opinion said: "We cannot escape the conclusion that although the
statute in terms is to punish fraud, still its natural and inevitable effect is to expose
to conviction for crime those . who simply fail or refuse to perform contracts for
personal service in liquidation of a debt, and judging its purpose by its effect that it
seeks in this way to provide the means of compulsion through which performance
of such service may be secured. The question is whether such a statute is
constitutional".

78
 The learned Judge proceeded to explain the scope and ambit of the
expression 'involuntary servitude' in the following words: "The plain intention was
to abolish slavery of whatever name and form and all its badges and incidents, to
render impossible any state of bondage, to make labour free by prohibiting that
control by which the personal service of one men is disposed of or coerced for
another's benefit, which is the essence of involuntary servitude."

Then, dealing with the contention that the employee in that case had
voluntarily contracted to perform the service which was sought to be compelled and
there was therefore no violation of the provisions of the Thirteenth Amendment, the
learned Judge observed: "The fact that the debtor contracted to perform the labour
which is sought to be compelled does not withdraw the attempted enforcement from
the condemnation of the statute. The full intent of the constitutional provision could
be defeated with obvious facility if through the guise of contracts under which
advances had been made, debtors could be held to compulsory service. It is the
compulsion of the service that the statute inhibits, for when that occurs, the
condition of servitute is created which would be not less involuntary because of the
original agreement to work out the indebtedness. The contract exposes the debtor
to liability for the loss due to the breach, but not to enforced labour."and proceeded
to elaborate this thesis by pointing out: "Peonage is sometimes classified as
voluntary or involuntary, but this implies simply a difference in the mode of origin,
but none in the character of the servitude. The one exists where the debtor
voluntarily contracts to enter the Service of his creditor. The other is forced upon
the debtor by some provision of law. But peonage however created, is compulsory
service, involuntary servitude. The peon can release himself therefrom, it is true, by
the payment of the debt, but otherwise the service is enforced. A clear distinction
exists between peonage and the voluntary performance of labour or rendering of
services in payment of a debt. In the latter case the debtor though contracting to pay
his indebtedness by labour of service, and subject like any other contractor to an
action for damages for breach of that contract, can elect at any time to break it, and
no law or force compels performance or a continuance of the service."

79
 It is therefore clear that even if a person has contracted with another
to perform service and there is consideration for such service in the shape of
liquidation of debt or even remuneration, he cannot be forced by compulsion of law
or otherwise to continue to perform such service, as that would be forced labour
within the inhibitian of Article 23. This Article strikes at every form of forced
labour even if it has its origin in a contract voluntarily entered into by the person
obligated to provide labour or service Vide Pollock v. Williams.(1) The reason is
that it offends against human dignity to compel a person to provide labour or service
to another if he does not wish to do so, even though it be in breach of the contract
entered into by him. There should be no serfdom or involuntary servitude in a free
democratic India which respects the dignity of the individual and the worth of the
human person. Moreover, in a country like India where there is so much poverty
and unemployment and there is no equality of bargaining power, a contract of
service may appear on its face voluntary but it may, in reality, be involuntary,
because while entering into the contract, the employee, by reason of his
economically helpless condition, may have been faced with Hobson's choice, either
to starve or to submit to the exploitative terms dictated by the powerful employer.
It would be a travesty of justice to hold the employee in such a case to the terms of
the contract and to compel him to serve the employer even though he may not wish
to do so. That would aggravate the inequality and injustice from which the
employee even otherwise suffers on account of his economically disadvantaged
position and lend the authority of law to the exploitation of the poor helpless
employee by the economically powerful employer. Article 23 therefore says that no
one shall be forced to provide labour or service against his will, even though it be
under a contract of service. So far as observance of the other labour laws by the
contractors is concerned, the Union of India, the Delhi Administration and the Delhi
Development Authority disputed the claim of the petitioners that the provisions of
these labour laws were not being implemented by the contractors save in a few
instances where prosecutions had been launched against the contractors. Since it
would not be possible for this Court to take evidence for the purpose of deciding
this factual dispute between the parties and we also wanted to ensure that in any

80
event the provisions of these various laws enacted for the benefit of the workmen
were strictly observed and implemented by the contractors, we by our order dated
11th May 1982 appointed three ombudsmen and requested them to make periodical
inspections of the sites of the construction work for the purpose of ascertaining
whether the provisions of these labour laws were being carried out and the workers
were receiving the benefits and amenities provided for them under these beneficient
statutes or whether there were any violations of these provisions being committed
by the contractors so that on the basis of the reports of the three ombudsmen, this
Court could give further direction in the matter if found necessary.

We may add that whenever any construction work is being carried

out either departmentally or through contractors, the government or any other
governmental authority including a public sector corporation which is carrying out
such work must take great care to see that the provisions of the labour laws are
being strictly observed and they should not wait for any complaint to be received
from the workmen in regard to nonobservance of any such provision before
proceeding to take action against the erring officers or contractor, but they should
institute an effective system of periodic inspections coupled with occasional
surprise inspections by the higher officers in order to ensure that there are no
violations of the provisions of labour laws and the workmen are not denied the
rights and benefits to which they are entitled under such provisions and if any such
violations are found, immediate action should be taken against defaulting officers
or contractors. That is the least which a government or a governmental authority or
a public sector corporation is expected to do in a social welfare state.

Case 3: Seenath Beevi vs State Of Kerala on 3 September, 2003 -

2003(3)KLT788

Petitioner, a Head Nurse working in the Taluk Head Quarters

Hospital, Thirroorangadi in the Health Services Department of the State has
approached this Court with the grievance that she is required to do continuous duty
for 14 hours at a stretch for 6 days consecutively.

81
 A few facts may be noticed. The strength of the nursing staff in Govt.
Taluk Head Quarters Hospital, Thirrorangadi is 44, out of which 36 Nurses are Staff
Nurses and 8 are Head Nurses. 4 Staff Nurses are working in other hospitals on
working agreements. Similarly 2 Head Nurses are working in other hospitals. The
strength of the Nursing Staff in the above hospital is thus reduced to 30.
Government have introduced shift system in some of the Government Hospitals.
Since shift system is not introduced in the Govt. Taluk Head Quarters Hospital,
Thirroorangadi, members of the Nursing Staff are compelled to work for 14 hours
a day at a stretch. Petitioner is working 14 hours a day and she is allowed to avail
only one day off in a week. She has averred in the O.P. that 'the work of nursing,
especially in Government Hospitals, is arduous in nature' and therefore long hours
of continuous duty is too harsh and inhuman to stand the test of law and justice. She
has prayed in this O.P. for a direction commanding the respondents to introduce 3
shift duty system in Government Hospital, Thirroorangadi, and for a declaration
that forcing the petitioner to be on duty continuously for 14 hours a day for 6 days
in a week is illegal and unconstitutional.

Nurses working in the Government Hospitals of the State have

approached this Court on prior occasions also with the above grievance. A Writ
Petition (O.P. No. 6842 of 1990) was filed by four Nurses working in the Women
and Children Hospital, Mattancherry, and another Nurse working in the Maharaja's
Hospital, Palluruthy, for the redressal of a similar grievance. Having regard to the
importance of the issue and the impact it may have throughout the State of Kerala
in the Health Services, K.T. Thomas, J. (as His Lordship then was), referred the
question for decision by a Division Bench of this Court. Before the Division Bench,
it was submitted on behalf of the Government that the question to limiting the duty
time of the Nursing Staff within 8 hours per day had been engaging the attention of
the Government for some time past and after considering all the aspects
Government have introduced "3 shift system" with the intention to limit duty time
of nurses as 8 hours per day.

82
 Three shift duty system was thereafter introduced in the Medical
College Hospital, Kottayam, as well as in the Medical College Hospital, Alappuzha,
with effect from June 28, 1989. In that background the Division Bench disposed of
O.P. No. 6842 of 1990 in the following manner: "In this view of the situation, all
that is left for us is to appreciate the approach of the State and sincerely desire to
order God speed to this necessary and noble function. When the State Government
has already done much in 1987 and 1989, the lull thereafter in the direction has to
be pushed up because 1994 is far away from 1989 with a period of five years
thereafter.

This petition is pending in this Court from 1990 with this counter
having been filed on July 27, 1992. Normally the State Government should have
come before us with an order of compliance, be that as it may in the above situation,
we allow this petition and direct the respondents 1 to 3 to take all necessary and
required steps to implement the three shift system already made applicable to the
medical hospitals referred to in paragraph 4 and other Medical College Hospitals
referred to in paragraph 5, almost forthwith without loss of further time to the
Women and Children Hospital, Mattancherry on or before December 31, 1994.
Needless to state that other similarly situated medical hospitals would also be
looked after in the same spirit by the present respondents, not requiring them to
approach this Court for this purpose any more. In the circumstances there shall be
no order as to costs".

Disappointed by the fact that no effective steps were taken thereafter

to introduce the shift system in other hospitals also, an association of Nurses, called
Kerala Government Nurses' Union, filed O.P. No. 1 of 2000 for a declaration that
the working condition requiring the nursing staff 'to do continuous duty at night for
14 hours at a stretch for 6 days' was unconstitutional and for a direction
'commanding the respondents to ensure that there is uniformity in the matter of
working hours of nursing staff under them by introducing three shift duty system in
all the Government hospitals'. A learned Single Judge of this Court disposed of the
said O.P. by Ext. P1 judgment. In that writ Petition the contention of the

83
Government was that introduction of the 3 shift duty system in all the hospitals
would incur huge financial commitment and therefore the shift system can be
implemented only in a phased manner subject to availability of the finance. Taking
due note of the above submission made by the Government, this Court in Ext. P1
judgment opined that the stand taken by the Government cannot be said to be
unreasonable and that the court cannot compel the Government to introduce the 3
shift system by incurring huge financial commitment. However, considering the fact
that the Government have implemented the 3 shift system in the Medical College
Hospitals and District Hospitals as also in some of the Taluk Head Quarters
Hospitals, the system should be extended to all the Taluk Head Quarters Hospitals.
For that purpose a time limit was fixed in Ext. P1, i.e., 31.12.2000. The operative
part of the judgment is as follows:

"Therefore, the Government is directed to introduce the system in all

the Taluk Headquarters Hospitals on or before 31st December, 2000. Thereafter
within one year the Government must take steps to introduce the shift system in all
the other Hospitals. Since the Government is given sufficient time, they must also
find out the sufficient finance for the above purpose within the above stipulated
time. Since the Government have got a duty to the people to extend the medical
facilities and health care, they cannot wriggle out from the above responsibility by
stating that they have no finance to implement the above system. It is for the
Government to find out the ways and means to see that the people in the State are
given proper medical care and hospital facilities".

It is seen that Government is not interested in implementing the

directions in Ext. P1, consequently Nurses including Head Nurses like the petitioner
are the victims of the inaction.

Learned counsel, Smt. Anu Shivaraman who argued the case for the
petitioner, submitted that rationalisation of the working hours by laying down just
and reasonable time schedule is the duty of every employer in a civilized society,
particularly of a model employer like the Government in a welfare State. The duty

84
of the State is as much more than a private employer. It has got the constitutional
obligation to do away with unjust and unfair conditions of service and replace them
with benign conditions which are just, fair and humane. Learned counsel put
emphasis on the need for a declaration as prayed for in this petition. To drive home
the point, counsel brought to my notice relevant Articles in the Universal
Declaration of Human Rights, 1948, decisions of the Supreme Court explaining the
meaning and content of the expression 'Right to Life' in the context of Article 21 of
the Constitution, relevant extracts from the text of I.L.O. Conference (Nursing
Personnel Convention 1977) and write-ups appeared in Health Care Magazines.

Facts stated in the Writ Petition, uncontroverted as they are, go to

show that the work of a Nurse, especially in the Government Hospitals, is extremely
arduous in nature. The sum and substance of the submission of the learned counsel
is that attending such duties continuously for long hours is harmful to the physical
as well as mental health of the Nurse, unsafe to the patient and likely to cause
deleterious consequences.

Nursing is a noble profession; it is not merely an occupation to earn

a living but a benevolent service. The nursing of the sick, said Florence Nightingale,
is a vocation as well as a profession. Nurses live in the midst of the distressing
atmosphere of the hospital. Naturally they get tired due to the stress and strain both
mental and physical. The submission made by the petitioner's counsel that
employees actively engaged in the work of nursing get totally exhausted by
attending duty continuously and regularly for a period of 10 to 14 hours a day, is no
exaggeration.

Qualified and efficient employees committed to the service of the

sick, the ailing and the injured is essential for the proper functioning of every
hospital. There is no place for any sort of indifference, lethargy or lack of devotion
to duty in the field of medical care. True it is that, qualification, skill, efficiency,
devotion to duty are essential for the doctor as well as the nurse. But those attributes
will not be of any use once the staff members get tired and exhausted and loose their

85
presence of mind. Burn out has been identified as a phenomenon that poses danger
to the physical and mental health of those who do overtime work regularly in
medical as well as other profession. The above issue is being seriously discussed
among physicians as it affects not only their ability at the work place but also their
private life. It is a fact that the sick and the injured need a nurse who is pleasant and
alert; well behaving and caring. The presence of a nurse who has lost the freshness,
the patience to attend the patient and has also lost the very equilibrium of the mind
and the body, will be felt as a curse.

Rationalisation of the working hours so as to make it humane and to

bring it within just and reasonable limits is not only the need of the nursing staff but
also the patients who are at the receiving end. In a broader sense it is the concern of
the society at large. Petitioner has brought to the notice of the respondents that
because of the inordinate delay in introducing the shift system nurses are compelled
to work 14 hours a day; female nurses find it extremely difficult to manage their
home affairs and long hours of continuous work denudes the very essence and
fragrance of their life.

Hours of employment, is a condition of service and the power to

prescribe the same, subject to limitations imposed by law, is the prerogative of the
employer. The question that at once arises is, whether in the absence of statutory
provisions or executive orders having the force of law, has not the employer got the
unfettered power to prescribe a schedule of working hours regardless of the
problems of the employees? What if any is the remedy for the worker, if the
prescribed working hours is so inhuman, unjust and unconscionable as to make his
life miserable? If solution to this problem cannot be found on statutory grounds, can
the grievance be redressed under the provisions of the Constitution? These are the
issues that arise for consideration in this Writ Petition.

Article 39(e) of the Constitution directs the State that the health and
strength of workers, men and women are not abused and that the citizens are not
forced by economic necessity to enter avocations unsuited to their age or

86
strength. Article 42 mandates that the State shall secure just and humane conditions
of work and for maternity relief. Article 43 states that the State shall endeavour to
secure, by suitable legislation or in any other manner, conditions of work ensuring
a decent standard of life and full enjoyment of leisure and social and cultural
opportunities.

In this connection it is worth noticing that the Indian Railways Act,

1890 was amended in the year 1930, based on the Geneva and Washington
Conventions sponsored by International Labour Organisation in order to regulate
hours of employment, period of rest and payment of overtime of various categories
of Railway employees. The employees were not satisfied with the amended
regulation adopted in 1930, They agitated for better conditions of service and as a
result of which Justice Rajadhayaksha adjudicated the issue and gave his award.
This award was accepted and the Indian Railways Act, 1890 was again amended in
the year 1956. The provisions thus made are known as Hours of employment
Regulations. A cursory look at these regulations shows that for the purpose of hours
of work, the Railway employees are classified as 'intensive', 'continuous',
essentially intermittent' and 'excluded'. A chart showing categories, description,
statutory limit, restored limits shift duty, weekly rest etc. is annexed to the said
Regulations. I am referring to the above Regulations to show that rationalisation of
the working hours was always a matter of concern for the labourers and that was
taken care of, at least to some extent, even during the colonial-pre-independence
period.

Rationalisation of working hours has to be done taking into account

the basic realities and other relevant aspects prevailing in each industry or
establishment and it will not be proper to simply copy down what has been done in
a particular industry or establishment. However, in the light of the Constitutional
mandate under Article 21 no employer whether private, Government or quasi-
Government has got the unfettered freedom to prescribe conditions of work
imposing duty hours exceeding certain limits. A glance through the various labour
regulations would show that compelling the worker to attend duty continuously for

87
14 hours for 6 days in a week consecutively is a service condition which stands in
isolation in the field of labour law and is inconsistent with the scheme of all those
legislations. The impugned working hours is definitely on the higher side. A reading
of Sections 51, 54, 55, 57 and 66(b) of the Factories Act, Sections 28 to 36 of the
Mines Act, 1952, Sections 19, 20, 21, 23 and 25 of the Plantation Labour Act,
Notifications under Section 13 of the Minimum Wages Act and similar labour
legislations shows that the normal working hours with a short interval is 9 hours
daily and the total working hours per week in the normal course is 48 hours.

"Eight-Hour Day and the 48-Hour Weekly" has been accepted as a

standard regulation in the Hours of Work (Industry) Convention, 1919 of the
International Labour Organisation Convention. The above Convention applies to
persons employed in public or private industrial undertakings. It provides that the
working hours shall not exceed eight in the day and 48 in the week. The Convention
authorises various exceptions also. It excludes persons holding positions of
management, and persons employed in a confidential capacity. It further says that
when the hours of work on one or more days of the week are less than eight, the
limit may be exceeded on the remaining days, but not by more than an hour. It is
also permissible to exceed the eight-hour limit in the case of shift work, but the
average number of hours over a period of three weeks should not exceed the general
standard of the Convention. Exceptions are also permitted in cases of accident,
actual or threatened, of urgent work to be done to machinery or plant, or of force
majeure, but only so far as may be necessary to avert serious interference with the
ordinary working of the undertaking. In exceptional cases where the standard of the
eight-hour day and 48-hour week cannot be applied, the daily limit of work can be
calculated over a longer period, with the agreement of the occupational
organisations concerned. It is pertinent to note that the Convention also provides
that employees should notify workers of the hours of work and rest intervals and
should keep a record of additional hours worked. It specifies that it should be made
an offence against the law to employ a person outside the hours provided in the
Convention. The Hours of Work (Commerce and Offices) Convention, 1930 also

88
has made more or less similar provisions. This Convention also authorises, in
exceptional cases, the distribution of hours of work over a period longer than the
week, provided that the average hours of work do not exceed 48 hours in the week
and that hours of work in any day do not exceed ten hours. The International Labour
Organisation has held Special Conventions and has taken resolutions with respect
to particular industries. The recommendation made by the International Labour
Organisation Convention 1962 shows that workers all over the world have been
consistently clamouring for reduction of the working hours. 19th Century has
witnessed many a battle fought by the working class against bonded labour,
drudgery and restless labour. In the streets of Chicago workers sacrificed their life
demanding 8 hours work, 8 hours rest and 8 hours entertainment. "May day"
became a memorable day for the workers all over the world, following this
historical struggle.

The District Office Manual also contains similar provisions.

Disparity in the matter of working hours between the category of employees to
which the petitioner herein belongs and the bulk of the State Government
employees governed by the Kerala Secretariat Manual, the Manual of Office
Procedure and the District Office Manual is so glaring that it cannot escape notice.
It is not to say that there should be absolute parity in the matter of working hours
between different categories and classes of employees, but to point out that the
difference in the working hours, (from 6 hours to 14 hours) is too wide a gap as to
cause agony and hardship to one section of the employees of the Government.

The nature and quality of service with which we are concerned here,
is not one to be performed mechanically but with full application of mind. It is a
matter concerning public health and those in distress. Hence such a service has to
be done with compassion and confidence in contradistinction to the indifferent
service rendered by a person with tired and irritated mind. Deficiency in service in
these kind of work is tantamount to disservice, because what is dealt with is human
life. No person running a hospital would be justified in providing deficient service
and no responsible Government can turn a Nelson's eye to the harm caused to or

89
injury suffered by its own employees and its own citizens. Hospitals run by the
Government are the only asylum for the sick hailing from lower middle class
families including those coming under the below poverty line. These sections of our
polity are generally unhealthy owing to their economic backwardness and are easily
prone to diseases. No Government or private entrepreneur has got the right to
meddle with the life of these unfortunate class of citizens by giving only deficient
service which often slips down to the level of disservice depriving them of their
very life itself.

Respondent-State has not pleaded in this case, that the existing

nursing staff are asked to work continuously for 14 hours for six days consecutively
in a week, for want of sufficient number of qualified hands available for
recruitment. It must be said, even if such a plea is raised, it will not be true to facts.
This Court can take judicial notice of the fact that there is no dearth for qualified
nurses in this State. Most of them are going to other States and abroad in search of
job opportunities. The number of Writ Petitions filed against orders of termination
by Staff Nurses appointed temporarily Under Rule 9(a) of K.S. & S.S.R. from the
list of candidates furnished by the Employment Exchange, illustrates the
availability of qualified hands in the open market.

Petitioner and similarly placed nursing staff are increasingly

working overtime and their overtime (mandatory or voluntary) has been used as a
measure to reduce the expenditure to be incurred for public health activities. The
increasing amount of overtime would threaten nurses' ability to provide safe and
individualise the patients' care. However, the question that may arise or that the
court may address to itself is: Can the judiciary undertake the task of laying down
hours of work or other conditions of service for government servants? No doubt the
power is vested in the Government and the primary responsibility is also that of the
Government. That apart without a proper study of the specific nature as well as
problems of the particular service eliciting relevant materials based on which
priorities can be fixed on a rational basis, there cannot be a blanket order prescribing
working hours and for that reason also, the task is that of the legislature or the

90
executive or the employer concerned. But here the situation is slightly different.
From the materials available in this case it is seen that the respondents have
accepted in principle (see the stand taken by the Government in the earlier Writ
Petitions also) three shift duty system for nurses working in Government Hospitals.
Hence, the only debatable issue is, should this court direct the respondents to
translate that principle into reality? Firstly it cannot be contended that the
Government has got the discretion to postpone the directions in Ext. P1 judgment
ad infinitum. Secondly, the existing hours of employment of nurses in many
hospitals including the one where the petitioner works infringe the fundamental
right under Article 21 of the Constitution. Implementation of 3 shift duty system
has thus become an imperative and this Court can exercise its power under Article
226 of the Constitution when the Government fails to do the constitutional duty.

As already stated, shortage of funds rather financial difficulty is the

only contention urged by the respondent-State as a defence against the non-
implementation of 3 shift duty system in the Government Hospitals. I am unable to
accept the above contention as justifiable reason to perpetuate the illegality and
infringement of the fundamental and the inalienable right guaranteed under Article
21 of the Constitution. It is the Constitutional obligation of the State to find out the
required funds to preserve such fundamental rights, otherwise Government will be
reduced to a machinery not worth its name. Salt is worth its name because of its
savour. Government cannot afford to stand as a helpless spectator witnessing injury
to public health and the life of its workers and citizens.

In the light of the above decisions it has to be held tat the respondents
are not justified in delaying the implementation of 3 shift duty system, even
ignoring the observations made by the Division Bench of this Court as early as on
23.8.1994 (judgment in O.P. No. 6842 of 1990) and the specific directions issued
by a learned Single Judge of this Court in Ext. P1 judgment dated 2.3.2000.
Moreover the hours of employment thrust on the petitioner and similarly situated
persons is an infringement of the fundamental right to life guaranteed under Article
21 of the Constitution. Accordingly, I allow this Original Petition granting the

91
following reliefs: (i) There shall be a declaration that compelling the petitioner to
be on duty continuously for 14 hours a day for 6 days consecutively in a week is
illegal and unconstitutional. (ii) The respondents are directed to introduce 3 shift
duty system in the Government Hospital, Thirroorangadi, immediately and redress
forthwith the grievance of the petitioner. (iii) It is made clear that in the light of the
declaration above made to the effect that the impugned action of the respondents is
illegal and unconstitutional, the prevailing system of assigning duty for 14 hours
continuously to the petitioner and other nursing staff shall not be continued. It
follows that the respondents shall take expeditious steps to introduce 3 shift duty
system for the nursing staff in all the hospitals.

Case 4: Indian Oxygen Ltd vs State Of Bihar & Ors on 16 February, 1990 -
AIR 1990 SUPREME COURT 1006

The Judgment of the Court was delivered by K. JAGANNATHA

SHETTY, J. Special Leave granted. Whether International Labour Day (1st May)
should be paid holiday in addition to the existing holidays for the employees of the
appellant Company is the sole question for determination in this appeal. The
appellant is a public limited company having manufacturing units and selling
outlets in the different parts of the country. In the State of Bihar the company has
an establishment at Mona Road, Burma Mines, Jamshedpur manufacturing
Industrial and Medical Cases and there is another establishment located at Ranchi
manufacturing liquid Oxygen Explosives. The holidays available to the employees
of the company's establishment are provided by the settlement dated 14 March
1971. The settlement provides for a total number of 13 holidays for office staff and
14 holidays for the factory staff. The relevant portion of the settlement reads:
"Provision of Settlement dated 14.3. 1971 ARTICLE: Leave and Holidays (c) The
number of National/Festival Holidays to which the factory staff and factory general
staff are entitled will be enhanced from the present number of 10 to 14 days
including 3 National Holidays viz. Republic Day, Independence Day, Mahatma
Gandhi's birthday and Viswakarma Puja. (d) The number of National/Festival
holidays for office and office general staff will be enhanced from 17 to 18 days per

92
calendar year including 3 National Holidays viz. Republic Day, Independence Day
and Mahatma Gandhi's birthday."

"Right and privileges Under any other law not to be affect- ed:--
Where any employee of an industrial establishment is entitled to such rights and
privileges under any other law for the time being in force or under any contract or
custom or usage applying to the said establishment, which are more favourable to
him, than any right and privileges conferred by this Act, nothing contained in this
Act shall affect such rights or privileges."

It will be convenient if at this stage, we also read sub-rule 3 of the

Rule 3(2) of the Bihar Rules framed under Section 14 of the Acttrial establishments,
display a notice asking his employees to indicate their choice in respect of 4 festival
holidays out of the list of festival holidays mentioned in the schedule under sub-
section (1)(b) of Section 3 of the Act." Section 3 makes it mandatory to declare
holidays on -6th January, 15th August, 1st May and 2nd October, besides 4 other
holidays on festivals out of the festivals mentioned in the schedule. Subrule (2) of
rule 3 provides procedure for fixing the four festival holidays at the beginning of
each calendar year. The employer shall display a notice asking his employees to
indicate their choice in respect ot 4 festival holidays out of the list of festival
holidays mentioned in the schedule to section 3(1)(b). Section 13 provides that the
rights and privileges of the workmen under any other law or under any contract or
custom or usage applicable to the establishment which are more favourable to the
workmen than that conferred by the Act shall not be affected. Since the employees
of the compa- ny's establishment at Jamshedpur were allowed more favour- able
holidays every year i.e. 18 (for office staff) and 14 (for factory staff) against the
total of 3 holidays provided for in the Act, the company wanted to declare the first
May as holiday by adjusting the holidays allowed in the settle- ment. 'The workmen,
however took the stand that the first May should not be adjusted within the total
number of holi- days provided in the settlement but should be given as an additional
holiday.

93
 Negotiations followed but neither side was willing to give up its
claim. The conciliation officer could not bring about settlement. Upon failure of
conciliation, the statuto- ry authorities directed the company to declare 1st May as
holiday in addition to the holidays provided for in the settlement. The company
moved the High Court under Article 226 of the Constitution challenging the
direction of the authorities. The High Court dismissed the writ petition observing
thus: "Under the existing arrangement, the employees are having 14/18 paid
holidays in an year and that cannot be defeated by Section 3 of the Act. But section
13 expressly provides that if the rights and privileges in respect of paid holi- days
enjoyed by the employees are more favourable than are prescribed by section 3,
their existing rights and privi- leges as to the total number of holidays will not be
preju- diced by section 3. It is clear that section 3 is not in- tended to prescribe a
minimum number of paid holidays in addition to the existing ones. The holiday on
the 1st May prescribed under the Act being compulsory in nature, therefore, must
be in addition to the privileges already granted to the workmen under the
agreement."

We are afraid we cannot agree with this line of reason- ing adopted
by the High Court. In fact, the conclusion and the reasoning seem to be inconsistent
with each other. Section 3 provides for three National holidays, one Interna- tional
Labour Day, and four festival holidays. It thus statutorily fixes.eight paid holidays,
four out of them are left to the choice of the management and employees for festival
occasions. These eight holidays however, are not in addition to the holidays that are
mutually agreed upon in the settlement. They are the minimum holidays which the
employees are entitled to. If there is existing settlement by which the employees are
entitled to more than eight holidays the management could not take away that rights
and privileges. To protect the employees in such cases the Statute intervenes
by Section 13. If the employees are entitled to more than eight holidays' under any
contract or usage applicable to the said establishment, or under any other law for
the time being in force that rights and privi- leges are saved by section 13. This
seems to be the require- ment of the statute.

94
 The case with not a dissimilar problem was in Tata Oil Mills Co. v.
K.V. Gopalan & Ors., [1966] 3 SCR 760. There this Court considered the scheme
and scope of sections 3 and 11 of the Kerala Industrial Establishment (National and
Festival Holidays, 1958) Act, 1958 which are similar in terms with sections
3 and 13 of the Act with which we are concerned.

"Every employee shall be allowed in each calendar year a holiday of

one full day on the 26th January, 15th August and the 1st May and four other
holidays each of one whole day for such festivals as the Inspector may, in
consultation with the employer and the employees specify in respect of any
industrial establishment."

'Rights and privileges under other laws, etc. are not affected--
Nothing contained in this Act shall adversely affect any rights or privileges which
any employee is enti- tled to with respect to national and festival holidays on the
date on which this Act comes into force under any other law, contract, custom or
usage, if such right or privileges are more favourable to him that those to which he
would be entitled under this Act."

Considering the rights of workmen under those provisions

Gajendragadkar, CJ., speaking for this Court observed (at764): "If under the
existing arrangement the employees are enti- tled to have more than 7 paid holidays,
that right will not be defeated by s. 3, because s. 11 expressly provides that if the
rights or privileges in respect of paid holidays enjoyed by the employees are more
favourable than are pre- scribed by s. 3, their existing rights and privileges as to the
total number of holidays will not be prejudiced by s. 3. The scheme of s. 11 thus
clearly shows that s. 3 is not intended to prescribe a minimum number of paid
holidays in addition to the existing ones, so that the respondents should be entitled
to claim the seven holidays prescribed by s. 3 plus the six holidays to which they
are entitled under the existing arrangement."

In the present case it may be relevant to note that the festival holidays
have not been identified or specified in the settlement. They have to be selected and

95
declared as holidays with notice to employees every year. It is only three National
holidays that have been specified therein in addition to Vishwakarma Puja day for
the factory staff and factory general staff. Now, the statute prescribes the same three
National holidays, besides International Labour Day and four festival holidays. But
these 3 holidays are not to the exclusion of or in addition to the total number of
holidays agreed upon under the settlement. Indeed, it could not be so, since three
National holidays are common both in the settlement and statute. The total number
of 14 holidays under the settlement as against 3 holidays under the statute remains
undisturbed by section 13 of the Act since it is more favourable to the employees
than the rights and privi- leges conferred by the Act. When thus being the position,
the management would be entitled to adjust the International Labour Day as a paid
holiday within the fourteen days al- lowed under.the settlement. The 'demand of the
employees that it should be in addition to fourteen days has no support either under
the settlement or by the terminology of the statute.

Case 5: K.Umadevi vs The Government Of Tamil Nadu by Madras High Court

The case of the petitioner is that she was working as an English

Teacher in Government Higher Secondary School, P.Gollapatti, Dharmapuri
District. Before joining the Government service, the petitioner was already married
to one A.Suresh in 2006. From the said wedlock, two children were born in 2007
and 2011 respectively. Subsequently, due to estrangement between them, they fell
out of each other and finally they were legally separated in the year 2017. The two
children born from the said wedlock are in the custody of the petitioner's former
husband.

On 12.09.2018, the petitioner got married to one Mr.M.Rajkumar.

Due to conceivement from the second wedlock, the petitioner applied for grant of
maternity leave to the authorities concerned for the period between 17.08.2021 and
13.05.2022 (nine months) towards pre-and-post-natal care.

When she applied for grant of maternity leave, she was under the
bona fide impression that earlier, when the two children were born from the first

96
wedlock, she https://www.mhc.tn.gov.in/judis was not in Government service and
that for the first time, she was availing the maternity leave benefit. She entered into
the Government service only in December 2012, and that too from the second
marriage, she was expecting a child, and in that circumstances there would not be
any issue of grant of maternity leave to her. Her apprehension was due to the fact
that in terms of the public policy adopted by the Government of India followed by
the State Government prescribing two child norm, the benefit being sought for the
third child, her request might not be favourably considered. However, in the
peculiar facts and circumstances of the case, as stated above, she had submitted a
request for the above said period.

The third respondent vide his proceedings dated 28.08.2021,

rejected the request of the petitioner, quoting Fundamental Rule 101(a), applicable
to State Government servants stating eligibility for grant of maternity leave is
available only to women employees having only two surviving children and there
is no provision for grant of maternity leave for the third child on account of her
remarriage.

The petitioner being aggrieved by the rejection of her request for

grant of maternity leave is before this Court. https://www.mhc.tn.gov.in/judis

Mr.Arun Anbumani, learned counsel for the petitioner has reiterated

the facts briefly. The learned counsel initially contended that as far as the
Government service is concerned, the petitioner was giving birth for the first time,
as the earlier two children were born from the first wedlock, prior to her entering
into the Government service in 2012. Therefore, the claim of the petitioner ought to
have been construed as a first child as far as the Government service is concerned
for extending the benefit of the maternity leave to her.

The learned counsel alternatively would submit that the reliance

placed by the authority on Fundamental Rule 101(a) is incorrect and cannot be
countenanced in law, as the provisions of the Maternity Benefit Act, 1961 (for short,
the M.B. Act, 1961) which was enacted in pursuance of the constitutional guarantee

97
enshrined in Article 42 does not impose any such condition for availing the
maternity benefit. According to the learned counsel, restriction of two child norm
for grant of maternity benefit to women Government servants came to be introduced
only in 1993 vide G.O.Ms.No.237, Personnel and Administrative Reforms, dated
29.06.1993, following the larger public policy adopted by the Central Government
towards https://www.mhc.tn.gov.in/judis population control. However, an
executive order cannot override a statutory provision, that too a Central legislation,
more particularly when the M.B. Act, 1961 was a constitutional requirement in
furtherance of Article 42 of the Constitution, demonstrating India's commitment to
the convention of the International Labour Organization in the year 1952.

While broadly outlining the challenge as above, the learned counsel

would then proceed to refer to a few decisions of the Hon'ble Supreme Court and
High Courts on the subject-matter. According to the learned counsel, the decisions
that are to be referred to, clearly support his contention that the Government cannot
have recourse to the Fundamental Rule 101(a) for the purpose of denying the
maternity benefit to the petitioner.

Taking into consideration the enunciation of law as settled by this

Court as also the High Courts in various decisions referred to above, the activity of
the Delhi Municipal Corporation by which construction work is undertaken or roads
are laid or repaired or trenches are dug would fall within the definition of "industry".
The workmen or, for that matter, those employed on muster roll for carrying on
these activities would, therefore, be "workmen" and the dispute between them and
the Corporation would have to be tackled as an industrial dispute in the light of
various statutory provisions of the Industrial Law, one of which is the Maternity
Benefit Act, 1961. This is the domestic scenario. Internationally, the scenario is not
different.

These principles which are contained in Article 11, reproduced

above, have to be read into the contract of service between Municipal Corporation
of Delhi and the women employees (muster roll); and so read these employees

98
immediately become entitled to all the benefits conceived under the Maternity
Benefit Act, 1961. We conclude our discussion by providing that the direction
issued by the Industrial Tribunal shall be complied with by the Municipal
Corporation of Delhi by approaching the State Government as also the Central
Government for issuing necessary Notification under the Proviso to Sub-section (1)
of Section 2 of the Maternity Benefit Act, 1961, if it has not already been issued. In
the meantime, the benefits under the Act shall be provided to the women (muster
roll) employees of the Corporation who have been working with them on daily
wages.”

The petitioner Block Resources Teacher Educator in Maths in

Thoothukudi District had her second delivery during the period between 16.10.2006
to 11.01.2007. For the aforesaid period, she was not given maternity benefit stating
that during the first labour, she had given birth to twins and therefore, by the present
delivery, she had given birth to a third child and hence by the order of the
Government in G.O.Ms.No.237, School Education Department, dated 29.6.1993
she will not be paid wages for her leave. The order communicating these views,
dated 27.10.2009 is under challenge in this writ petition.

The petitioner though placed reliance upon an order passed in

respect of one Mrs.Meri Joshpin Anjali, a Secondary Grade Teacher of St. Alocius
Girls Higher Secondary School, who was given an exemption from Rule 5A read
with 101(a) of Fundamental Rules and explanation 1 was relaxed in her favour by
G.O.Ms.No.367, School Education Department, dated 8.10.1998, the respondent
did not choose to grant any exemption. Therefore, the only question that would arise
is whether the impugned order refusing to grant her maternity for the birth of her
third child in the second delivery and to treat her leave to which she was eligible
was legally justified?

(ii) The same learned Judge of this Court however did not restrict his
consideration to the facts of that case alone, but has taken a call to go into the very
legality of the Fundamental Rules and the explanation contained therein as observed

99
by him in paragraphs 7 and 8. The said paragraphs are extracted as under:The matter
could have been dealt with on technical ground, i.e.intention of the rule is only the
grant of maternity leave for the second delivery and not really based upon two
children norm. The petitioner had delivered during her first delivery twins and the
second delivery was a single child. Therefore, maternity leave was confined only to
the second delivery and not based on the third child norm. Therefore, the petitioner
should have been granted maternity leave with full pay. If it is not construed in this
way it may produce ridiculous result. To cite an example, if during the first delivery
a woman Government servant delivers a single child and by the second delivery if
she delivers twins or triplets, then should she be disqualified?

When the employment opportunity is at global level, the

interpretation of welfare laws should be towards attracting competent workforce
towards India and not to repel them away from India.

For the foregoing reasons, the proceedings of the fourth respondent

in O.Mu.No.1868/A5, dated 09.04.2015 and the consequent recovery proceedings
of the sixth respondent, in Na.Ka.No.267/2015, dated 21.04.2015 are quashed and
the writ petitions are allowed as prayed for. No costs.”

The learned counsel, after drawing reference to the above decisions,

would submit that the issue herein is no longer res integra, as the Courts have
consistently held that a woman employee cannot be denied maternity benefits by
applying two children norm. According to him, the rejection of the petitioner's
request therefore cannot be countenanced in law and liable to be interfered with.

On behalf of the respondents, Mr.Abishek Moorthy, learned

Government Advocate appeared, and was led by Mr.V.Arun, learned Additional
Advocate General. According to the learned Additional Advocate General, Article
42 empowers the State to bring in enactments towards grant of maternity relief.
According to him, in line with the constitutional directives maternity benefits has
been https://www.mhc.tn.gov.in/judis provided in the Fundamental Rules. Over the
years, the period of maternity leave has been enhanced from time to time.

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 The learned Additional Advocate General would refer to the
Fundamental Rule 101(a) in support of his contention. He then proceeded to refer
to G.O.Ms.No.105, Personnel and Administrative Reforms (FR.III) Department,
dated 07.11.2016 enhancing the maternity leave from 180 days (six months) to 270
days (nine months). He has also brought to the notice of this Court that
subsequently, an amendment has been introduced in FR 101(a) enhancing the
maternity leave to 270 days vide G.O.Ms.No.154, Personnel and Administrative
Reforms (FR II) Department, dated 05.12.2017 infusing statutory force to
G.O.Ms.No.105 dated 07.11.2016.

The attention of this Court has also been drawn to two other
Government Orders in G.O.Ms.No.77, dated 20.06.2018 and G.O.Ms.No.91 dated
28.07.2020, of the Personnel and Administrative Reforms (FR-III) Department. In
the first G.O.Ms.No.77 dated 20.06.2018, it was clarified that in case of a woman
Government servant giving birth to twins in a delivery, maternity leave shall be
granted to one more delivery. As far as the latter Government Order is concerned,
the learned Additional Advocate General has referred to the contents, in particular,
the first proviso in the Order, which read thus: “(i) A competent authority may grant
maternity leave on full pay to permanent married women Government Servants and
to non-permanent married women Government servants, who are appointed on
regular capacity for a period not exceeding 270 days, which may spread over from
the pre-confinement rest to post confinement recuperation at the option of the
Government servant. Non-permanent married women Government servants, who
are appointed on regular capacity and join duty after delivery shall also be granted
maternity leave for the remaining period of 270 days after deducting the number of
days from the date of delivery to the date of joining in Government service (both
days inclusive) for the post confinement recuperation.

Non-permanent married women Government servants, who are

appointed under the emergency provisions of the relevant service rules should take
for maternity purposes, the earned leave for which they may be eligible. If however,
such a Government servant is not eligible for earned leave or if the leave to her

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credit is less than 270 days, maternity leave may be granted for a period not
exceeding 270 days or for the period that falls short of 270 days, as the case may
be. Non-permanent married women Government servants employed under the
emergency provisions should have completed one year of continuous service
including leave periods, if any, to become eligible for the grant of maternity leave:

In the judgment dated 19.10.2016 of the Madurai Bench of Madras

High Court in W.P.(MD) No. 9227 of 2015 another learned Single Judge considered
a similar question and held that unless there is a law prohibiting/ restricting the
number of delivery in order to have indirect control over population, then the
Government cannot decline Maternity Leave fixing the number of children
delivered in each delivery.

However a Division Bench of the Madras High Court in the

judgment dated 27.02.2020 in W.A. No.4343/2019, considered a case where
Maternity Leave was denied to a CISF personnel governed by Rule 43 of
CCS(leave) Rules, on the ground that she had more than 2 children. There also she
was having twin children in the first delivery. The judgment of the learned Single
Judge was reversed observing that the same was rendered without taking note of
the relevant rules. It was held that the admissibility of the benefit would be limited
if one has more than two children and it does not depend on number of deliveries.

In the present case, the FACT has only adopted the provisions
contained in Subsection 3 of Section 5 of the Maternity Benefit Act, 1961. The
petitioner is already granted leave for a period of 12 weeks. It cannot be said that
the number of https://www.mhc.tn.gov.in/judis deliveries can only be the factor to
determine the eligibility for maternity benefit. The Central Government has found
that the benefit of Section 5 i.e., the provisions for paid Maternity Leave need be
extended only to those who do not have two children. Petitioner's claim that she is
entitled to 26 weeks' paid leave towards her second delivery, cannot be accepted
when the Government of India has enacted the law to see that the labourers are
protected and at the same time the population explosion is also kept under check,

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which will also be a measure towards protection of the health of the women
labourers. At any rate, there is no prohibition with respect to the number of children
an employee can have. The restriction is in granting 26 weeks' Maternity Leave.
The woman employee is given 12 weeks' paid leave irrespective of the number of
children. By way of amendment effected in 2015, the 12 weeks' Maternity Leave
has been enhanced to 26 weeks' leave. It cannot be also said that there is no purpose
in limiting the number of surviving children irrespective of the number of deliveries
to make one eligible for grant of Maternity Leave. The Government have been
granting incentives to those, who did not have more than two children. Maternity
Leave is not admissible at all for the third child for a mother
https://www.mhc.tn.gov.in/judis working in a Central Government establishment
and governed by CCS(leave) Rules. It cannot be said that just because petitioner
has given birth only twice, she should be given the maternity benefit for her second
delivery, to the third child also, when Government found it necessary to restrict the
benefits only to those having children less than two.

According to the averments in the affidavit filed in support of the

writ petition, divorce petition at the instance of the petitioner in FCHMOP No.153
of 2016 before the Family Court, Dharmapuri was allowed on 20.03.2017,
dissolving the first marriage of the petitioner with one Mr.A.Suresh. The divorce
granted by the Family Court has become final, as according to the petitioner, the
appeal in https://www.mhc.tn.gov.in/judis C.M.A.No.1437 of 2017, filed before
this Court by the husband had been withdrawn by him, subsequently. It is also
averred in the affidavit that during the family court proceedings and also subsequent
to the grant of divorce, the custody of the two children born from the first wedlock
remained with the father.

The above facts being not controverted, point to the reality that the
petitioner is not having the custody of children born from the first wedlock, as on
date. When the provisions of both the M.B. Act, 1961 and the Fundamental Rules
speak about not more than two or three surviving children, as the case may be, the
rule of construction ought to be oriented towards advancing the object, spirit and

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purpose of the Act/Rules. More particularly, with reference to the expression used
in the provision of Section 5(3) of the M.B. Act, 1961 that maximum period of
entitlement of maternity leave benefit for a woman having two or more than two
surviving children must mean that the mother having children in her custody,
literally and factually.

When Fundamental Rules or GOs provide maternity benefit and

restrict such benefit to a woman Government servant with two surviving children
only, such stipulation must receive meaningful, beneficial and liberal interpretation.
In a case like the present one, https://www.mhc.tn.gov.in/judis the scheme of the
Fundamental Rules on the aspect of providing the maternity benefit and the M.B.
Act, 1961, must be harmoniously read conjunctively together to extend the benefit
as far as possible and not to deny the same by obscure and hazy understanding of
the spirit of the Act and the Rules. The semantic construct of the expression “having
surviving children” must be taken to mean that the woman Government servant
seeking the benefit must have custody of the children. The thrust therefore must be
towards grant of the benefit by liberal interpretation than to withhold the benefit on
the pedantic construct of the provisions.

As a matter of fact, the Government itself has issued G.O.Ms.No.77

dated 20.06.2018 wherein the maternity benefit has been extended to second
delivery, even if a woman Government servant had given birth to twins in the first
delivery. The Government therefore recognized such extreme cases and the
circumstances and this is one of the peculiar cases wherein as a fallout of divorce
from the first marriage, the petitioner had to part with the custody of her two
children born from the first wedlock. Therefore, in the entirety of the facts and
circumstances of the case, it cannot be, today, said that the petitioner is having two
surviving children at all. In these circumstances, a purposive and meaningful
reading of the provisions https://www.mhc.tn.gov.in/judis and its implementation is
a constitutional obligation cast upon the authorities, considering the peculiar and
singular facts and the circumstances of the case. The Court therefore holds that the

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petitioner is deemed to have not having two surviving children, inviting
disqualification for claiming the maternity benefit.

On behalf of the respondents, two decisions have been cited, the

relevant portions have already been extracted supra. As regards the reliance placed
on the decision of the Division Bench of this Court rendered in M.Asiya Begum is
concerned, as rightly contended by the learned counsel for the petitioner, it was a a
case relating to application of Central Civil Services Leave Rules. The Division
Bench adverting to the rule position therein, has held that the Government servant
therein was not entitled for the grant of maternity benefit in respect of the third
child. The Division Bench decision and the ruling ought to be confined only to the
rules that governed the service conditions of the employee therein. Such ruling
rendered on the framework of the Central Government rules cannot be stated to be
applicable or binding on the claim of the petitioner herein, as admittedly, the
petitioner herein is governed by a state statute. On the other hand, the ruling of the
learned two Judges of this Court as aforementioned, has dealt with the same
Fundamental https://www.mhc.tn.gov.in/judis Rules applicable to the State
Government employees and held that the two children ceiling cannot be applied in
their cases.

As far as the Kerala High Court judgment is concerned, that was a

decision rendered on a different factual matrix and the consideration was also not
germane to the present examination of this Court. As could be seen in paragraph 20
of the said judgment, which has been extracted in the earlier part of the order, the
consideration therein was, whether the woman employee concerned was entitled to
12 weeks or the maximum benefit of 26 weeks of maternity leave, in terms of
Section 5(3) of the M.B. Act, 1961. The fact in that case was the employee had
given birth to twins in her first delivery and for the next delivery, she sought
maximum maternity benefit (26 weeks). In that context, the Court held that there
was nothing wrong in placing restrictions on the benefits applicable to those having
more than two children. The Court has eventually ruled that instead of the full
period of 26 weeks of maternity leave, paid leave granted to the employee for a

105
period of 12 weeks was in order. In the said circumstances, the decision of the
Kerala High Court cannot be said to have any application on the controversy herein.

This Court has also extracted the relevant portions of the ruling of
the Hon'ble Supreme Court and this Court wherein the country being a signatory to
the convention relating to women empowerment and implementation of benefits
relating to labour laws, is constitutionally bound to give effect to the commitments
made to international conventions. The M.B. Act, 1961, was the result of the above
commitment and it was also a constitutional imperative in tune with the Directive
Principles of the State Policy as embedded in Articles 39 and 42 of the Constitution.
When the Central Act (M.B. Act, 1961) is stated to be in furtherance of the Directive
Principles of the State Policy as contained in the Constitution of India, any
executive orders, circulars or subordinate legislation or even the State law which is
not in consonance with the Central enactment will have to be read down to give a
constitutional thrust and purpose in terms of the Central enactment. As long as the
Central enactment has not placed any restrictions on the number of children for the
purpose of availing maternity benefits, no other rule or regulations can put any
fetters on such claim.

Lastly, the Court was informed that recently, the Government has
issued G.O.Ms.No.84, Human Resources Management (FR-III) Department, dated
23.08.2021, further https://www.mhc.tn.gov.in/judis enhancing the maternity leave
from 9 months (270 days) to 12 months (365 days). This Court is appreciative of
the State Government's studied sensitivity towards the motherhood and its deep
understanding of the importance of wholesome rearing and fostering of new born
child. Maximizing the maternity benefit under the said GO is a reflection of sublime
concern of the Government towards the well being of its women employees. The
enhanced benefit under the said GO is protected in terms of Section 27(2) of the
M.B. Act, 1961, even though, the Central Act is lagging behind on this aspect.

For all the above said reasons, this Court finds that the rejection of
the petitioner's claim for grant of maternity benefits cannot be countenanced in law

106
and therefore, the impugned proceedings passed by the third respondent in
Na.Ka.No.3763/E1/ 2021 dated 28.08.2021 is hereby set aside.

Case 6: V.Prakash vs The Deputy Superintendent Of Police on 14 December,

2007 – Madras High Court

Mr.Sanjay Mohan, learned counsel appearing for the management

which has filed the impleading petition, M.P.No.2 of 2007 would submit that the
abovesaid order can be clarified to the effect that the writ petitioner may be
permitted to address the gate meeting beyond 200 metres subject to the decree
passed by the civil Court, which was opposed by Mr.V.Prakash, learned senior
counsel who is the petitioner in the writ petition appearing party-in-person.
However, he has fairly stated that since the management has come by way of the
impleading petition he has no objection to argue the case on merit again in the
presence of counsel for management so that a final order can be passed and
submitted that the earlier order dated 30.11.2007 can be recalled. In view of the
same, order dated 30.11.2007 is recalled and the writ petition heard along with the
said impleading petitions.

The writ petition is filed by Mr.V.Prakash, learned senior counsel

and also the Honorary President of MRF United Workers Union for direction to the
respondents in the writ petition namely, the Deputy Superintendent of Police,
Arakkonam and the Inspector of Police, Taluk Police Station, Arakkonam to permit
him to address the workers of MRF Factory at Itchiputhur [near Arakkonam] at the
gate meeting between 2.30 pm. and 3.30 pm. to be held on 2.12.2007 (Sunday), as
traditionally done in all factories with permission to use mike.

The case of the petitioner is that the workers of MRF Limited, having
realised that there was no genuine trade union to ventilate the grievances of the
workers and the Union existed was operated by the management, started a trade
union by name, MRF United Workers Union, which was registered. Thereafter,
when there was some victimisation of workers, complaints were made by the said
Union to the Committee of Freedom of Association (CFA) of the International

107
Labour Organisation (ILO) having headquarters at Geneva and in registering the
said complaint, the petitioner being the honorary President and senior lawyer, has
assisted the workers. The International Labour Organisation, after elaborate
discussion of the entire issue, has made some recommendations to the Government
of India and the appropriate Government to issue necessary direction for the
recognition of the MRF United Workers Union.

It is the case of the writ petitioner that the said Union has invited the
petitioner to address the workers at the gate meeting which is traditionally done. It
is also stated that MRF Limited has obtained an order of interim injunction in the
District Munsif's Court, Sholingar against MRF United Workers Union in three
interlocutory applications, in I.A.Nos.53 to 55 of 2005 in O.S.No.13 of 2005. In
another suit filed by the management in OS.No.90 of 2002 on the file of Sub Court,
Ranipet, Vellore District, against Mr.Thirumavalavan and others, in which the
petitioner's name was also shown, I.A.No.82 of 2002 was filed for interim
injunction restraining the respondents from staging dharna, holding protests, rallies
within 50 metres on all sides of the factory, etc. The petitioner has stated that in
view of the said injunction order, the MRF United Workers Union was informed by
the police that they should not hold the gate meeting on 7th December, 2007.
According to the petitioner, the said injunction order can never stand in the way of
addressing the workers to inform them the result of the complaints and
recommendations of the ILO, nor does it bar the MRF United Workers Union to
invite the petitioner to address the meeting. It is the further case of the petitioner
that addressing such meeting is a fundamental freedom guaranteed under Article
19(1)(a) of the Constitution of India and that cannot be deprived of under the guise
of an order of injunction. It is, in view of the same, the petitioner has filed the above
writ petition for the prayer stated above.

Even though the prayer was in respect of a gate meeting on

2.12.2007, the petitioner would submit that this being an issue relating to
fundamental right, the petitioner has the right to address the meeting on subsequent
days and therefore, it cannot be said that the writ petition has become infructuous.

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 M.P.No.1 of 2007 is filed by MRF Arakkonam Workers' Welfare
Union, which is also stated to be a registered Union, to implead it as a party with
the pleadings that the MRF Limited is having a tyre manufacturing factory at
Itchiputhur wherein 1416 workers are working and out of them, 1365 are confirmed
workmen. According to the petitioner in the said M.P., out of 1365 workmen, 1194
are the members of its Union, 57 workers are members of MRF Cycle Tyre Workers
Union and remaining 114 workers alone are the members of MRF United Workers
Union to which the writ petitioner is the Honorary President. Therefore, the
petitioner in the M.P. is the majority union recognised by the management as the
sole collective bargaining agent. According to the petitioner union, the workmen
have given individual letters to the MRF Limited authorising the Union to deduct
the subscription from their monthly salary. According to the petitioner in the M.P.,
MRF United Workers Union is having its Office at Sholingar Road, opposite to
L.I.C. at Arakkonam and if the writ petitioner wants to speak to its members, he can
address the meeting in the Office itself in respect of the ILO recommendations. The
gate of MRF Limited is situated on the Highways road which is very narrow.
According to the petitioner in the M.P., the aim of the writ petitioner is to create
certain problems among the work force so that the management will take some
drastic action and the petitioner wanted to take advantage of the same to ventilate
the grievance that even after the recommendations of the ILO, the management is
resorting to victimisation.

It is the further case of the petitioner in the M.P. that if really the writ
petitioner wants to address its members, he can do it in a peaceful manner in the
office of the union and the holding of gate meeting will only create problem among
the workmen and divide the workmen who are united. Further, the intention of the
writ petitioner is not to use his right under Article 19(1)(a) of the Constitution of
India, but to create problem in the smooth running of the factory and by virtue of
the public meeting sought to be addressed by the petitioner, the management may
even close down the factory. Therefore, in the public interest, no permission should
be given to the writ petitioner. It is the further case of the petitioner in the M.P. that

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in O.S.13 of 2005, the writ petitioner himself is a party against whom there is an
order of injunction passed by the competent civil Court and therefore, the writ
petitioner should not be given any permission to address the gate meeting. In view
of the same, according to the petitioner, it is a proper and necessary party to be
impleaded as a respondent in the writ petition.

M.P.No.2 of 2007 is filed by the MRF Limited being the employer

to implead itself as a party. It is the case of the petitioner in the said M.P. that the
management has filed the suit in O.S.No.13 of 2005 in the District Munsif's Court,
Sholingar in which M.R.F. United Workers Union to which the petitioner is the
Honorary President was the defendant and it was represented by its President,
V.Paramasivam and General Secretary, G.Shankar as defendants 1 and 2. In the suit
the relief claimed was permanent injunction restraining the defendants from
interfering in any manner with the movement of raw-materials, stock of goods, etc.,
permanent injunction from interfering in any manner with the movement of loyal
workers, executives, officers and customers from and into the plaintiff's premises
and permanent injunction against the defendants from gathering or demonstrating
in any manner within 200 metres of the plaintiff's schedule mentioned premises.

In the said suit, the petitioner in the present M.P. has also filed three
I.As. namely, I.A.No.53 of 2005 for restraining the respondents from interfering
with the movement of raw-materials, finished goods, etc. till 8.2.2005, I.A.No.54
of 2005 for restraining the respondents from gathering together or demonstrating in
any way within 200 metres from the petitioner's premises till 8.2.2005 and
I.A.No.55 of 2005 for restraining the respondents from interfering with the
movement of Officers and executives from and into the petitioner's premises till
8.2.2005. There were ex parte orders of injunction granted by the District Munsif's
Court on 25.1.2005 and it was against the said ex parte injunction orders, M.R.F.
United Workers Union has filed revisions in C.R.P.Nos. 427, 631 and 632 of 2005
which were dismissed by this Court on 13.3.2006.

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 It is also the case of the petitioner in the M.P. that in the meanwhile,
the suit in O.S.No.13 of 2005 was decreed ex parte on 24.2.2005. It is to set aside
the said ex parte decree dated 24.2.2005, the MRF United Workers Union has filed
I.A.No.417 of 2007 which is pending. Therefore, according to the petitioner in the
said M.P., the permission which is sought for by the writ petitioner to address a gate
meeting is against the injunction decree passed by the competent Civil Court. It is
the further case of the petitioner/management in the said M.P. that the writ petitioner
has not even mentioned as to why he has chosen to address only in the gate meeting
at the factory. According to the petitioner, the business of the factory would be
affected if the meeting is held in defiance of the decree passed by the Civil Court.
The factory works under three shifts, viz., (i) from 7 am. to 3 pm., (ii) 3 pm. to 11
pm. and (iii) 11 pm. to 7 am. According to the petitioner/management, the
permission which is sought for by the writ petitioner will create lot of problems
among the customers of the factory. It is also stated that what the International
Labour Organisation has done is that it has called upon the Government of Tamil
Nadu to examine the complaint of the writ petitioner's Union. It is further stated that
the main entrance of the factory is situate on the Highways. Since the gate
admittedly belongs to the petitioner/management, at which the writ petitioner wants
to conduct the meeting, the petitioner in the M.P. is a proper and necessary party.

Mr.K.M.Ramesh, learned counsel appearing for the impleading

party in M.P.No.1 of 2007 which is a rival Union submits that the Union sought to
be impleaded is consisting of majority of workmen and therefore, it is to be
considered as a proper and necessary party. His further contention is that in the
meeting, if the writ petitioner addresses, it will only affect the members of the
impleading Union and the majority of the workmen who are all members of its
Union may be prevented from entering into the factory and hence, the petitioner in
the M.P.No.1 of 2007 is a proper and necessary party.

Mr.Sanjay Mohan, learned counsel appearing for the

petitioner/management in M.P.No.2 of 2007 would submit that inasmuch as the writ
petitioner wants to address the gate meeting in front of the factory which belongs

111
to the petitioner in M.P.No.2 of 2007, the petitioner has got substantial interest in
the subject matter of the writ petition and therefore, it should be treated as a proper
and necessary party.

Per contra, Mr.V.Prakash, learned senior counsel/party-in-person

contends that the rival Union which is the petitioner in M.P.No.1 of 2007 is neither
a necessary party, nor a proper party and it is not concerned with the issue involved
in the writ petition at all. He has made it very clear that his intention is not to deviate
the members of the petitioner Union in M.P.No.1 of 2007, nor to prevent its
members from entering into the factory. He has also made it clear that the members
of the Union/ petitioner in M.P.No.1 of 2007 will have the freedom to enter into the
factory at the time when the petitioner is permitted to address in the gate meeting
and those members who want to enter into the factory premises will not be
prevented either by the writ petitioner or by the members of the MRF United
Workers Union to which the petitioner is the Honorary President and there is
absolutely no basis for the apprehension of the learned counsel for the petitioner in
M.P.No.1 of 2007 and police protection may also be given so that the members of
its Union can enter into the factory premises, if they desires.

As far as M.P.No.1 of 2007 is concerned, it is filed by MRF

Arakkonam Workers Welfare Union. Even assuming that the said Union is having
majority number of workmen as its members, viz., 1194 workers out of 1365, the
question to be considered is whether the said Union is a proper and necessary party
to the writ petition. It is well settled that a necessary party is one without whose
presence the decision to be taken in a case cannot be arrived at. On the other hand,
a proper party is one whose presence is required for proper adjudication of the issue
involved in a case. The subtle difference between the two is that in the case of
former, the decision can be arrived at only after hearing the impleading party,
whereas in later, the impleading of the party is necessary for the purpose of proper
adjudication. As far as the said Union, the petitioner in M.P.No.1 of 2007 is
concerned, there is absolutely no difficulty to come to the conclusion that the said
Union is neither a necessary party, nor a proper party. The apprehension of

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Mr.K.M.Ramesh, learned counsel for the Union/impleading party that its members
may be obstructed from entering into the factory has no basis, especially in the
circumstances that the writ petitioner has made it clear that his intention is not to
obstruct anyone belonging to the said Union at all. Further, it is, during working
hours only, the meeting will be conducted near the gate which is a traditional form
of meeting and therefore, there is no question of the petitioner in M.P.No.1 of 2007
being impleaded as a party in the writ petition which has been filed for the purpose
of conducting gate meeting among the members of the MRF United Workers Union
to which the writ petitioner is the Honorary President. In view of the same,
M.P.No.1 of 2007 is dismissed.

In respect of the impleading petition filed by the employer, even

though the writ petitioner has submitted that he has no objection for hearing him as
an intervener, but his objection is only to implead the employer as a party since the
impleadment will give rise to a new cause of action or will confer a right for further
cause of action. As far as the relief claimed in the writ petition is concerned, as I
have stated earlier, the desire of the writ petitioner is to speak to the members of his
Union not within the premises of MRF Limited, but outside the premises, near the
gate and therefore, the apprehension of the employer that there may be breach of
peace inside the campus by the meeting to be addressed by the writ petitioner, in
my considered view, has no basis. Therefore, it cannot be said that the petitioner in
M.P.No.2 of 2007 is a necessary party. However, it is only among the workers of
the employer/petitioner in M.P.No.2 of 2007, the writ petitioner wants to address
and therefore, it can never be presumed that the petitioner in M.P.No.2 of 2007 has
no interest in the issue involved in the writ petition at all. Certainly, the petitioner
in M.P.No.2 of 2007 is a proper party, though it is not at all a necessary party. In
view of the same, M.P.No.2 of 2007 stands allowed.

Now, coming to the main issue involved in this case, it is seen that
the MRF Limited has filed the suit in O.S.No.13 of 2005 on the file of District
Munsif, Sholingar against (i) MRF United Workers Union represented by
V.Paramasivam, President and (ii) MRF United Workers Union represented by

113
G.Shankar, General Secretary. The plaint in the said suit shows that MRF United
Workers Union was formed with 120 workers as an inter-union rivalry to M/s.MRF
Cycle Tyre Unit Employees Association and by forming the rival Union, the
members of MRF United Workers Union are indulging in arm-twisting methods,
threatening the members of MRF Cycle Tyre Unit Employees Union and by such
unlawful conduct the MRF United Workers Union is interfering with the production
process and general discipline in the establishment. Further, a reading of the plaint
also shows that a settlement was entered into between the plaintiff management and
MRF Tyre Unit Employees Association after mutual negotiation running for
number of days and such negotiation was sent to the Government authorities as per
the requirements of Rule 25(3) of the Tamil Nadu Industrial Disputes Rules, 1958.
The specific case of the employer/plaintiff in the said suit was that after such
negotiated settlement was entered into, the Office bearers of the defendants Union
(MRF United Workers Union) are indulging in unlawful activities and they have
been gathering and threatening loyal workers, executives, officers and obstructing
customers as well as movement of raw-materials and goods into and from the
plaintiff establishment.

In view of the above said narration of facts in this case, necessary

conclusion which could be arrived at is to allow the writ petitioner to have the gate
meeting to explain to his Union members about the recommendations of the
International Labour Organisation. Of course, the meeting to be conducted in a
peaceful manner not preventing the other employees, who intend to attend to work
or the executives or officials of the MRF Cycle Tyre Unit or movement of goods
from and out of the premises of the MRF Limited and the meeting to be conducted
peacefully between 2.30 p.m. to 3.30 p.m. on any day which may be pointed out by
the petitioner and in which event, the respondents 1 and 2 shall give permission for
the same by using the megaphone.

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 CHAPTER - 6

CONCLUSION AND SUGGESTIONS

6.1 Conclusion

Labour mobility consists of changes in the location of workers both

across physical space (geographic mobility) and across a set of jobs (occupational
mobility). Geographic mobility can be further subdivided into short-distance and
long-distance moves, as well as into voluntary and coerced migration. Occupational
mobility can be lateral (within a broad class of jobs similar in socioeconomic status)
or vertical (from one job to a better or worse job). The availability of large,
nationally-representative longitudinal surveys in the late twentieth century has
made it possible to measure the extent of mobility in all these dimensions, and how
they are related, in several developed economies. Our understanding of the extent
of labour mobility through history has been enhanced by work conducted since the
1970s in which the careers of individual workers are reconstructed by locating them
in censuses and census-like enumerations (city directories, tax lists, population
registers) at successive dates. At the aggregate level, labour mobility conveys
important economic benefits. The reallocation of workers across regions permits
the exploitation of complementary resources as they are discovered in new places,
while reallocation across sectors makes possible the use of new technologies and
the growth of new industries. At the individual level, mobility allows for
improvements in the economic circumstances of those whose skills or aspirations
are a poor match for the job or location in which they find themselves. The impact
of labour mobility extends well beyond these economic considerations, however.
The ability of fluid U.S. labour markets to deter labour radicalization has been
recognized by Karl Marx, Selig Perlman, and Stephan Thernstrom. Since the work
of Frederick Jackson Turner more than a century ago, scholars have debated the role
of the frontier in forging a particularly American political economy in the U.S.
Sociologists have examined the impact of mobility on the operation of communities

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and interpersonal relationships, and political scientists have considered how
mobility effects political participation and coalition formation.

Of all the challenges associated with global mobility, employment

law and compliance are some of the most complex to navigate. An evolving legal
landscape containing hundreds of differing local regulations makes tracking and
managing people, legislation, and data challenging. However, this can be done
compliantly by drawing in all the available complex data and reverse-engineering
simple processes and policies.

It’s down to business leaders to enable the quick deployment of

people – without the risk of legal penalties, reputational damage, and financial
losses from non-compliance – by making the case for a simple, centrally managed
system backed by local knowledge. Are you ready to make the case?

Regulation of migration has remained largely the domain of

sovereign states without a formal multilateral institutional framework. However, in
a world that is so interconnected, it is difficult for migratory flows to be managed
exclusively through autonomous nations. Migration is a global phenomenon
requiring cooperative solutions at a global level. If such solutions are not found, we
will fail to take full advantage of the full potential for development offered by
migration. We will also ensure many migrants end up living without legal
protection, the victims of abuse or social exclusion. In spite of the relevance of the
phenomenon, there has been limited debate about the regulatory, institutional and
operative basis for migration governance. However, such debate is absolutely
necessary for the development of a coherent and fair vision for the future of
migration. That debate should lead to a progressive pragmatic and gradual
liberalisation of regulation on migration in order to achieve an orderly and realistic
management of migratory flows. The best way to achieve that objective would be
to combine the establishment of universal minimum standards, shared by all
countries, with the implementation of a dynamic of bilateral and regional interaction
among government officials based on problem-solving purposes that could end up

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involving greater commitments at a regional and bilateral level. At the global level,
a framework of dialogue and negotiation should be started in which countries can
offer to take positive steps on liberalisation in a similar way to the approach adopted
in the GATS. In order to encourage those processes, progress should be made in
setting up a multilateral institutional framework with competences over the
regulation of labour migration. The most viable alternative is to start with the IOM,
changing its mandate and statute to transform it into a multilateral body, integrated
within the United Nations system, and specialised in managing voluntary migration.
Mechanisms of dialogue, both globally and especially regionally, should continue
to be promoted. And well-functioning government networks may create a dynamic
of coordinated solutions, based on constant exchange of information, addressing
issues and formulation of non-binding codes of conduct. These networks might
facilitate the environment for more formal supranational agreements.

6.2 Suggestions

How can you promote labour mobility and reduce unemployment

1. Skills development
2. Information access
3. Housing affordability
4. Social ties
5. Policy regulations

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 BIBLIOGRAPHY

Books:

1. Migration as Economic Imperialism: By Immanuel Ness

2. Let Their People Come: By Lent Petrichatt
3. International Labour Mobility: By Valentina Vasile

Website:

1. www.google.com
2. www.indiankanoon.org
3. www.ssrn.paper.com
4. www.legalservices.in
5. www.inianexpress.com
6. www.kahndolacollege.edu.in
7. www.ipleaders.com

Articles:

1. Ferrie, Joseph P. Yankeys Now: Immigrants in the Antebellum U.S., 1840-

60 (New York: Oxford University Press, 1999).
2. Margo, Robert A. Wages and Labor Markets in the United States, 1820-1860
(Chicago : University of Chicago Press, 2000).
3. Commons, John R. et al. History of labour in the United States (New York:
The Macmillan Company, 1926-35).
4. Moch, Leslie Page. “The European Perspective: Changing Conditions and
Multiple Migrations, 1750-1914.” In European Migrants : Global and Local
Perspectives, edited by Dirk Hoerder and Leslie Page Moch. Boston :
Northeastern University Press, 1996).
5. Long, Jason L. “Labor Mobility in Victorian Britain.” (Ph.D. Dissertation,
Northwestern University, 2002).

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