THE ECONOMIC WEEKLY October 20, 1962

Book Review

Industrial L a w : Theory and Practice

Rashid A l i

I n d u s t r i a l J u r i s p r u d e n c e by S R Samant, N M T r i p a t h i P r i v a t e L t d , 1961; pp 175, Rs 12.50.

G r o w t h of L a b o u r L e g i s l a t i o n In I n d i a since 1939 a n d Its I m p a c t on E c o n o m i c Development by R D
V i d y a r t h i , Star P r i n t i n g W o r k s , Calcutta, 1961; pp 335, Rs 12.50.
L a w of I n d u s t r i a l Dispates in I n d i a by R F R u s t o m j i , Law Publishing House, Allahabad, 1962; pp
clix i 623, Rs 25,

THE phrases l a b o u r laws' and l a t i o n ; R u s t o m j i , a Senior A d v o c a t e , c i t i n g the f a c t that there a r e income-

' i n d u s t r i a l l a w s ' are used in this has made a t h o r o u g h a n a l y s i s of tax t r i b u n a l s f o r income-tax law,
country, as elsewhere, s y n o n y m o u s l y one Act, namely, the I n d u s t r i a l D i s - co-operative t r i b u n a l s f o r co-opera-
a n d denote those laws and legal pute Act, in the l i g h t of decisions of tive laws a n d tenancy courts f o r
rules w h i c h regulate the employer- the Courts to-date. R u s t o m j i has, in tenancy l a w s . Samant's laborious
employee relations. Some of these addition, written an introduction arguments supporting a separate
laws, though not directly dealing d e a l i n g w i t h the b a c k g r o u n d to the j u d i c i a r y are not a l l c o n v i n c i n g .
w i t h such relations, nevertheless i m - subject of i n d u s t r i a l disputes. It is a n i v e r s a l l y agreed that " t h e
pose c e r t a i n obligations or confer i n d u s t r i a l disputes have become so
certain r i g h t s upon the employers or Why Industrial Courts ? numerous t h a t c o m m o n o r o r d i n a r y
the employees so that in the ultimate Samant begins at the b e g i n n i n g , courts o f l a w , a l r e a d y burdened w i t h
analysis they can be deemed to i m - namely, why industrial jurispru- o v e r w o r k , a r e not in a position to
pinge u p o n employer-employee rela- dence ? Does the set of i n d u s t r i a l cope up (sic) w i t h t h e m . " (p 35)
tions. The literature on i n d u s t r i a l laws provide a n y rules or system It is also true that the complicated
laws, however, must confine itself to m e r i t i n g the name of industrial a n d protracted procedure of the
those laws w h i c h directly and sub- jurisprudence ? T h o u g h the g r o w t h c o m m o n courts of l a w presents a
stantially, and not remotely and of legislation, as V i d y a r t h i ' s study problem to litigants in labour
incidentally, deal w i t h the relation- shows, has been h a p h a z a r d a n d of- matters. B u t this a r g u m e n t w o u l d
ship between employees and employ- ten to meet the needs of the day, be appealing if it could be shown
ers. "A code of c i v i l procedure m a y there has been a steady g r o w t h a n d that i n d u s t r i a l courts are f o l l o w i n g
prohibit the attachment of the wages enlargement of certain principles a markedly simplified procedure.
of a servant in execution of a dec- w h i c h c a n collectively be embraced U n f o r t u n a t e l y it is not so, partly
ree. An educational act m a y in- by the title of Samant's book T h e because justice cannot be doled out
directly eliminate children's entry o r i g i n a n d the predominant purpose w i t h o u t legal trappings. T h a t the
into i n d u s t r y by p r o v i d i n g f o r their of i n d u s t r i a l l a w s have not been c o m m o n courts of l a w are costly is
compulsory education. Yet, surely, maintenance o f l a w a n d order o r another argument endorsed by
these cannot be called industrial the r a i s i n g of m o n e y by the State. Samant. However. courts of l a w
l a w s " . ( S a m a n t , p 25). By l a w , of I n d u s t r i a l l a w s are essentially bene- are not i n h e r e n t l y so. T h e e x o r b i -
course, is not meant m e r e l y the acts ficial laws a n d these benefits they tant court fees a n d the delay in the
of legislature. Customs a n d agree- seek to provide along certain rules disposal of capes a r e the two m a i n
ments h a v i n g the force of l a w or w h i c h are not a part of ' n o r m a l ' factors responsible for the high
g i v i n g rise to laws should legitima- l a w . F o r instance, the dismissal of cost of l i t i g a t i o n .
tely be included in the term indus- an employee is no l o n g e r to be
governed by the c o m m o n law of Bar on Lawyers Unjustified
trial laws. So also case l a w or
master a n d s e r v a n t ; the hours of Samant treads on still more con-
judge-made l a w w h i c h , at any rate
w o r k , wages a n d conditions of ser- troversial ground when he says
in this country, has been enormous
especially in matters like bonus, vice s h a l l no longer be denendent that c o m m o n courts of l a w are
scales of pay, discipline in i n d u s t r y upon contract alone; the recovery of biased a n d reactionary and that
etc. delayed or i l l e g a l l y deducted wages i n d u s t r i a l matters are complicated
shrill be made expeditiously; a n d , a n d therefore need both technical
T h e three books under review deal above a l l , several questions of i n - a n d legal expertise. I n the f i r s t
w i t h i n d u s t r i a l l a w i n its different d u s t r i a l l i f e shall he decided not by place, judges f o r both the categories
aspects land f r o m different angles. express provisions of l a w but by the of courts are recruited from the
T h o u g h they o v e r l a p to some extent, dictates of social justice. same society a n d i n h e r i t the same
they are in fact c o m p l e m e n t a r y to
outlook — unless of course, judges
each other. Samant, a judge of the C o r r e s p o n d i n g to the g r o w t h of
of i n d u s t r i a l courts are picked and
Labour Court in B o m b a y , is con- i n d u s t r i a l l a w has been the g r o w t h
chosen f o r their "progressive out-
cerned w i t h the e x a m i n a t i o n of the in the n u m b e r of i n d u s t r i a l courts
look". Secondly judges have to
basic principles that go to m a k e in- a n d the v o l u m e of their business.
dispense justice on the basis of the
dustrial jurisprudence; Vidyarthi, an W h y should there be separate courts
evidence placed before them and
economist a n d official of a C h a m b e r for dispensing i n d u s t r i a l justice ?
a c c o r d i n g to law a n d f o r this they
of Commerce, provides a neat his- T h i s question comes too late in the
need not have 'technical' know-
torical sketch of the g r o w t h of legis- d a y a n d c a n b e s h o r t l y answered b y

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October 2 0 , 1962 THE ECONOMIC WEEKLY
 THE ECONOMIC WEEKLY October 20, 1962

ledge. In a n y case, the present V i d y a r t h i has his quota of com- and if the charge is proved, the
judges of i n d u s t r i a l courts are not plaints. He says that " f o r s m a l l employer can punish the w o r k e r .
technically qualified persons. factories it is impossible Several decisions of the Supreme
Closely connected w i t h to comply w i t h provisions r e l a t i n g
the j u d i - Court have by n o w l a i d d o w n that
c i a r y is the question of the role of to cleanliness, health, w e l f a r e etc" the i n q u i r y must be f a i r a n d need
lawyers i n i n d u s t r i a l courts. In(p 71). If that is so, these s m a l l not be strictly according to rules
some courts l i k e those established factories have no business to exist. followed by courts of l a w a n d that
under the Payment of Wages Act, The Factories A c t prescribes o n l y the quantum of punishment is a
lawyers c a n appear by r i g h t . H o w - certain m i n i m u m standards a n d i f decision of the management a n d the
ever, before tribunals established even these cannot be complied w i t h , courts w o u l d not substitute this
under the I n d u s t r i a l Disputes Act, a i n d u s t r i a l establishments w o u l d be- judgement f o r that of the manage-
l a w y e r can appear on behalf of one come a menace to the safety and ment. U n f o r t u n a t e l y . o n several
p a r t y o n l y w i t h the consent of the health of the w o r k e r s , V i d y a r t h i ' s points the l a w is not yet settled.
other p a r t y a n d the permission of complaint that "a factory inspector T h e problem of indiscipline in
the t r i b u n a l . T h i s invidious bar carries out his duties as a police- i n d u s t r y is not l i k e l y to be solved
against lawyers has been completely m a n " , (p 72) is misplaced because by courts; it is a p r o b l e m w h i c h has
ignored by Samant a n d appro- he is expected to do so. The vio- to be tackled by trade unions and
priately discussed at length by l a t i o n of the provisions of the employers together a n d to be solved
R u s t o m j i . T h i s bar is based upon Factories A c t invites penalties a n d in the interest of the i n d u s t r y as a
a suspicion, old but unjustified, the Factories Act, after a l l , finds whole,
"that lawyers m i g h t foment l i t i g a - its appropriate place in a m a n u a l
o f c r i m i n a l laws. Rustomji's survey of case l a w is
tion a n d their approach w o u l d be
extremely helpful to a l a w y e r in
technical a n d l e g a l " (p c x x v ) . The Regarding the settlement of i n d u s t r i a l tribunals. He has exa-
exclusion of lawyers f r o m tribunals i n d u s t r i a l disputes, V i d y a r t h i com-
m i n e d the various decisions care-
has far reaching consequences plains, that the present m a c h i n e r y
f u l l y a n d pointed out the principles
w h i c h are too patent to be ignored. does not ensure j o i n t consultation
involved in them. He has traced
It deprives parties before tribunals a n d makes a r b i t r a t i o n compulsory the trend of decisions, though he is
of the valuable assistance to w h i c h (p 92). But the present m a c h i n e r y careful enough to show that in cer-
they are entitled. As a result, very does not b a r j o i n t consultation. On
tain matters there has not been a
often, some cases go by default the c o n t r a r y it is o n l y when negotia-
consistent development. Rustomji's
because of the failure to put f o r t h tions and conciliation have failed
book is meant essentially for law
effectively the necessary points of that resort is made to the m a c h i n e r y yers though the introduction of
view a n d of law. Secondly, w i t h - under the l a w . W i t h o u t this m a c h i -
nearly 150 pages might be read by
out the assistance of lawyers the nery every s m a l l i n d u s t r i a l dispute
others w i t h interest.
development of l a w w i n be handi- w o u l d have h a d a m u l t i p l i e r effect
capped. T h i r d l y , without an active a result no one desires. If the As said earlier, these three books
and vigorous bar it would be im- m a c h i n e r y has not w o r k e d well in w r i t t e n by three persons in diffe-
possible to find judges of tomorrow. practice, it is not the fault of the rent positions present different
law-makers. T r a d e unionists w h o aspects of the same subject,
Historical Perspective though the level of treatment varies.
are ready to agitate at, or even
Samant is eminently fitted to Rustomji's is a study of a specific
without, the slightest provocation
realise this situation a n d to m a k e Act and hence intensive; Samant
a n d I n d i a n employers w h o w o u l d
valuable recommendations. But writes of the basic principles under-
give o n l y the legally m i n i m u m a n d
he makes none. H i s criticisms and l y i n g industrial laws; a n d V i d y a r t h i
that too after legal action — they
recommendations even in other is occupied w i t h the historical
are responsible f o r the disrepute in
matters, are h a l t i n g a n d hesitating development of labour legislation.
w h i c h the w o r k i n g of industrial
—in keeping w i t h the outlook of a
laws has fallen.
judge. V i d y a r t h i , on the other
hand, is eager to analyse the theory
and practice o f industrial l a w c r i t i - Indiscipline in Industry
cally, and provides a better histori- V i d y a r t h i has completely failed
cal analysis. He is also concerned to take note of the problem of i n d i -
w i t h the practical difficulties of ad- scipline in industry. L a w in this
m i n i s t e r i n g i n d u s t r i a l l a w s — d i f f i - respect is p r e d o m i n a n t l y judge-made
culties faced by the management. a n d appropriately dealt w i t h by
I n c i d e n t a l l y , V i d y a r t h i throws up R u s t o m j i . N o l a w c a n adequataly
certain interesting facts. F o r i n - cover the variety of acts of mis-
stance, h o w m a n y people k n o w that conduct w h i c h range f r o m mere
the first I n d i a n Factories Act was insubordination to open violence.
put on the Statute book as a result Under law, today, an employer can-
o f agitation b y Lancashire M a n u - not take a n y d i s c i p l i n a r y action
facturers w h o were aggrieved by against an employee without f o l l o w -
cheap I n d i a n L a b o u r a n d therefore i n g rules of n a t u r a l justice. He
wanted a b a n on the employment must h o l d a proper bonafide i n q u i r y
o f c h i l d labour i n I n d i a ? into the misconduct of the employee

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October 20, 1962