Sadashiv Peth, Pune - 411 030
Email : firstname.lastname@example.org
SPEEDY DISPOSAL OF CASES
In every seminar and conference relating to law, concern is expressed about pending cases and solution generally offered is to increase the number of judges. Comparison is also sought to be made with other countries on the basis of judges per unit of population. Such comparison is misleading and not of relevance, because in our country, vast percentage of population can be said to be illiterate as far as legal rights are concerned and therefore, the valid and useful comparison could be only on the basis of number of judges per unit of cases. Therefore, although increasing number of judges may be a part of solution, it is not the best available solution. It is proposed to restrict the discussion to cases arising out of infringement of labour related laws in
It should be appreciated that justice delivery system comprises of procedure involving many stages and involvement and necessity of application of judicial mind comes at a later stage. If procedure introduces lethargy and delay at earlier stages, unless remedial measures are taken at those stages - more number of judges would be mere cosmetic measure.
The litigation in labour courts / industrial courts / industrial tribunal starts with filing of cases directly or with reference made by appropriate Government to labour courts / industrial tribunal. In case of complaints under M.R.T.U. and P.U.L.P. Act(an Act in
Issues involve disputed facts, which are required to be proved by parties. The burden is put on respective parties to prove the disputed facts of which they either claim or deny existence.
It is the general tendency to write the issues verbatim in cases of reference as stated by appropriate Government in reference and in case of complaints under M.R.T.U. and P.U.L.P. Act, the items of the schedules as alleged in the complaint are reproduced. This unnecessarily widens the scope of litigation, leaving the parties at liberty to offer relevant as well as irrelevant evidence. It must not be lost sight of that ‘terms of reference’ or items of ‘unfair labour practice’ are probable and legitimate inferences, which can be drawn on the basis of existence or non-existence of certain alleged facts. Thus, termination by way of victimization, colourable exercise, illegally, etc. can not be issues, but they are inferences to be drawn on the basis of certain proved facts. It need not be emphasized that proper issues enable or even compel parties to limit the evidence only to relevant and disputed points and this may reduce the time taken at evidence stage considerably.
Generally the dispute involved in labour adjudication arises out of infringement of statute or contract and demeanor of the witness is not of much relevance. The civil procedure code is amended to make evidence by Affidavit mandatory. However, some courts are reluctant to permit evidence by way of Affidavit. No doubt procedure of labour judiciary is not governed by Civil Procedure Code and judges can adopt their own procedure, but this is only to save labour related disputes from rigour of strict and codified procedure. That does not mean that labour judiciary is immune from changes brought in Civil Procedure Code, which reduce delay. It is well known that evidence in person consumes maximum court time. It should also be insisted by courts that all oral evidence of one party should be produced before the court at one time. This is only possible if evidence is received by affidavits. If this is implemented, it would reduce 75% of time taken by litigation.
After the evidence, another stage involving considerable time is arguments. The courts should insist that arguments are restricted to disputed points about which court invites arguments.
Thus, if existing procedure is strictly complied with and some new procedure is adopted, it may be possible to dispose the cases earlier, without increasing the number of judicial officers.
These are merely a few suggested steps for speedy disposal of cases and many more would emerge if associations of practitioners deliberate on this issue.
It is also worthy of notice that vague, ambiguous laws lead to rise in number of litigations. Some of the labour laws have become obsolete and some need codification. If the number of cases coming to courts is reduced by suitably amending the labour laws making them definite, unambiguous and pragmatic, it may be possible to use the existing judicial infrastructure to maximum efficiency. A few suggestions may not be out of place to narrate.
The Legislation created the special forums of industrial / labour courts / tribunals with a view to provide expeditious judicial remedy to workmen and to save them from rigour of Civil Procedure Code, which causes much delay in litigation. The main idea was to provide expeditious remedy to weaker section of the society. Obviously, weaker section of the society would mean financially weak, and such weakness would have no relationship with nature of work performed. Instead of criteria for defining ‘workmen’ being in terms of monthly ‘wages’, the definition of workman in various labour laws is based on the nature of work performed. Moreover, there are different definitions of ‘workmen’ as well as ‘wages’ in different labour laws. It would be apparent on perusal of old labour law journals that the definition of ‘workmen’ had been the cause of litigation on infinite number of occasions. This has resulted in filing cases before courts only because the definition is vague, ambiguous and capable of multiple interpretations. It may also be noted that only on the point, whether the litigant is ‘workman’ or otherwise, the cases have traveled from labour court to supreme court and back after consuming decades. The case of D.P. Maheshwari is an example. If the definition was made simpler and was based only on quantum of monthly remuneration and not on the type of work performed, the volume of litigations involving precious time of court would have been minimized.
Section 25(f) was introduced in I.D. Act, 1947, so that workman, whose services are terminated due to no fault of his, should get some timely monetary support and this support was quantified and made a condition precedent to retrenchment. Commentaries contain large number of cases, giving details of litigation arising out of non-compliance and interpretation of this section. Instead of being condition precedent, if the compensation is required to be paid within a reasonable time, say a week, it shall not defeat the purpose for which this section was introduced. At the same time, disputes alleging non-compliance of this section could be minimized, because the compliance would be easier.
Similarly, under Industrial Employment (Standing Order) Act, 1946, it is specifically provided that in case of dismissal for misconduct, the same should be preceded by domestic enquiry. By now, by various decisions, the principles of natural justice have emerged, infringement of which vitiate the enquiry. No doubt principles of natural justice cannot be put in straight jacket, however, if the guidelines at least from known principles are codified in Act, or Rules, the litigation on this score would reduce.
Similarly, if more penalties are provided under the standing order for misconduct to fill the void between four days suspension and dismissal, the employer would be reluctant to issue dismissal orders, where he finds suspension of four days inadequate. To award penalty of suspension in unauthorised absence cases only encourage such absence. In fact, if the penalty of dismissal can be imposed by employer, then by inference, he should be deemed to be authorized to issue punishments short of dismissal, though not specified in standing orders.
The labour laws were enacted when the only industries were textile, jute, etc. The engineering industry was at infancy and no one had heard the name of I.T. Sector. The model standing orders were made keeping in view the factory workers, whose contact with outsiders during working hours was almost nil. With rise of service sector including banks, hotels, catering services, more and more employees are coming in direct contact with customers and public at large and the model standing orders are inadequate. Service industries require different standard of conduct from employee than engineering industry. Thus, there is a need to frame different standing orders to service industry.
On all these points deliberations by practitioners, consultants and trade unions are required and out of which, new systems and procedures may emerge reducing need for litigation and speedy disposal of cases may be possible with existing justice delivery system.
* * * * *