LABOUR LAW

SUBMITTED BY: SOHINI BANERJEE

ROLL NO: A048
YEAR: FOURTH YEAR
DIVISION: BBA LLB
SUBMITTED TO: PROFESSOR K.S. SANDHU

IN COMPLETION OF TERM END ASSESSMENT FOR LABOUR LAW

A PAPER TITLED-
“The Jurisprudential Evolution Of Labour Law In India”
Table of Contents

INTRODUCTION....................................................................................................................3
Chapter 1: History & Background of Labour Legislations.................................................5
Chapter 2: Industrial Disputes...............................................................................................9
CHAPTER 3: MISUSE OF LABOUR LAW......................................................................15
CHAPTER 4: Paternity Leave: An unexplored aspect of Labour Law...........................18
Conclusion...............................................................................................................................26
BIBLIOGRAPHY..................................................................................................................28

2
INTRODUCTION

Considerations of British political economy were naturally paramount in shaping some of

these early laws. In the beginning it was difficult to get enough regular Indian workers to run
British establishments and hence laws for indenturing workers became necessary. This was
obviously labour legislation in order to protect the interests of British employers. 1The
maintenance of industrial peace designed to advance economic growth ought to be the
objective of labour legislation. Even though the industrial revolution resulted in the
maximization of production and the national income and so on the per capita income went to
high pitch, paradoxically the fate of the vast multitude, namely the wage-earning class did not
improve. Rather their condition became more deplorable both outside and inside the factory2.
Originally, industrial relations were broadly defined to include the relationships and
interactions between employers and employees. From this perspective, industrial relations
cover all aspects of the employment relationship, including human resource management,
employee relations, and union-management (or labour) relations. Now its meaning has
become more specific and restricted. Accordingly, industrial relations pertain to the study and
practice of collective bargaining, trade unionism, and labour-management relations, while
human resource management is a separate, largely distinct field that deals with non-union
employment relationships and the personnel practices and policies of employers. The
relationships which arise at and out of the workplace generally include the relationships
between individual workers, the relationships between workers and their employer, the
relationships between employers, the relationships employers and workers have with the
organizations formed to promote their respective interests, and the relations between those
organizations, at all levels.

Aims and Objectives

Good industrial relation is the basis of higher production with minimum cost and higher
profits. It also results in increased efficiency of workers. New and new projects may be
introduced for the welfare of the workers and to promote the morale of the people at work.
An economy organized for planned production and distribution, aiming at the realization of
1
A brief note on Legislation laws in India, Babu Mathew, https://amrc.org.hk/content/brief-note-labour-
legislation-india, 28/09/2018 at 12:41 PM.
2
K.Madhavan Pillai, Labour and Industrial Laws, 1 (2000)

3
social justice and welfare of the massage can function effectively only in an atmosphere of
industrial peace. If the twin objectives of rapid national development and increased social
justice are to be achieved, there must be harmonious relationship between management and
labour. An important distinction that is popularly made nowadays in all discussions relating
to labour legislation is between workers in the organised/formal sector and those in the
informal/informal sector. Many who make this distinction do so with ulterior motives, yet we
must reckon with it - especially because out of the total workforce in the country, 92 percent
work in the informal sector while only eight percent work in the formal sector. Due to the
fundamentally unbalanced nature of the relationship between the workman and the employee,
it of utmost important that there exists sufficient labour legislation in order to protect the
rights of the employee against unfair labour practices by the employer. Especially in
instances where a dispute is already existing between an employer and employee in front of a
Court, the employer may want to discharge his employee who he would view as a
“troublemaker”, which would also help deter other employees from launching legal disputes
with the employer. Such a scenario erodes the fundamental labour protections that the
Industrial Disputes Act sought to provide workmen according to the object of the Act, yet, for
a very long time, this has often not proven to be the case. Until an amendment was passed to
the original Act, the employee’s only option for recourse is if a reference was made to them
by the Government under Section 10 of the Act. Some of the initial problems have been dealt
with, however, there is much farther to go in order to ensure that worker’s rights are
completely shielded from employers who seek to abuse them.

Research Questions
1) Whether the current provisions in law in the ID Act provide sufficient protection to the
workmen against the employer’s exploitative practices?

2) Whether the nature of adjudicatory bodies are adequately equipped to consider the relaities
of issues faced by labourers?

Hypothesis
At the outset it must therefore be remembered that those who were unorganised yesterday are
organised today and those who are unorganised today aspire to become the organised
tomorrow. Moreover, many rights, benefits, and practices, which are popularly recognised
today as legitimate rights of the workers, are those that have accrued as a result of the
4
struggles carried out by the earlier generation of workers. The attempt, prevalent in some
circles to pit one section of workers against the others, must therefore be carefully understood
and deserves to be rejected outright. Industrial relations also include the processes through
which these relationships are expressed (such as, collective bargaining, workers’ participation
in decision-making, and grievance and dispute settlement), and the management of conflict
between employers, workers and trade unions, when it arises. The relationship between
Employer and employee or trade unions is called Industrial Relation. Harmonious
relationship is necessary for both employers and employees to safeguard the interests of the
both the parties of the production.

In order to maintain good relationship with the employees, the main functions of every
organization should avoid any dispute with them or settle it as early as possible so as to
ensure industrial peace and higher productivity. There are two broad categories of labour law.
Firstly, collective labour law relates to the tripartite relationship between employee, employer
and union. Secondly, individual labour law concerns employees' rights at work and through
the contract for work.  The labour movement has been instrumental in the enacting of laws
protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the
social and economic development since the industrial revolution.

Chapter 1: History & Background of Labour Legislations

The history of labour legislation in India is naturally interwoven with the history of British
colonialism. It is well known that Indian textile goods offered stiff competition to British
textiles in the export market and hence in order to make India labour costlier the Factories
Act was first introduced in 1883 because of the pressure brought on the British parliament by
the textile magnates of Manchester and Lancashire. Thus we received the first stipulation of
eight hours of work, the abolition of child labour, and the restriction of women in night
employment, and the introduction of overtime wages for work beyond eight hours. While the
impact of this measure was clearly welfarist the real motivation was undoubtedly
protectionist! To date, India has ratified 39 International Labour Organisation (ILO)
conventions of which 37 are in force. Of the ILO’s eight fundamental conventions, India has
ratified four - Forced Labour 1930, Abolition of Forced Labour 1957, Equal Remuneration
1951, and Discrimination (employment and occupation) 1958. Three main functions are

5
played by labor law tailored to the economic and social demands of the new world of work: it
provides a legal structure that promotes efficient individual and collective employment
relationships and thus a productive economy by providing a mechanism through which
employers, employees and their representatives can engage in relation to work-related
relationships.

The ILO was established as an agency of the League of Nations following the Treaty of
Versailles, which ended World War I. Post‐war reconstruction and the protection of labour
unions occupied the attention of many nations during and immediately after World War I. In
Great Britain, the Whitley Commission, a subcommittee of the Reconstruction Commission,
recommended in its July 1918 Final Report that "industrial councils" be established
throughout the world. The British Labour Party had issued its own reconstruction programme
in the document titled Labour and the New Social Order. In February 1918, the third Inter‐
Allied Labour and Socialist Conference (representing delegates from Great Britain, France,
Belgium and Italy) issued its report, advocating an international labour rights body, an end to
secret diplomacy, and other goals.

Before the World War I (1914-1918), there was no legislation for the general class of
industrial workers or for their welfare. Even the regulations under the factories and mines
legislation were an eyewash; they had no muscle or teeth because, at that time, the policy of
the British Government in India was influenced by the capitalist theory of laissez faire – free
economy and non-intervention by the government in labour and industrial matters. After the
First World War, conditions changed. The experience of World War I influenced a great deal
the attitude of the government and the employers to labour in India. The Russian Revolution
of 1917, the growing discontent among the Indian working class as well as the increase in
political unrest in the country, all contributed to the enactment of labour legislation.

Trade unions appeared on the Indian scene in the first half of the 20th century, which
deepened and widened labour-management conflicts. The agitation of workers was a
powerful factor in shaping legislation. The establishment of the ILO in 1919, of which India
was a member since its inception, also gave a great fillip to labour legislation in India
because it adopted many of its conventions and recommendations on international standards
for improvement in labour conditions. Another significant event, as far as our country is

6
concerned, was the formation of the All India Trade Union Congress in 1920. As a result of
all these, after 1920, labour legislation took great strides in India.

“The new Factories Act and Mines Act were passed in 1922 and 1923 respectively to
improve the working conditions of workers in factories and mines. Many new and important
laws were enacted e.g. the Workmen’s Compensation Act, 1923; the Indian Merchant
Shipping Act, 1923; the Indian Trade Unions Act, 1926; and the Trade Disputes Act, 1929.
Many existing labour laws were thoroughly amended, and many new acts were enacted, e.g.
Tea Districts Emigrant Labour Act, 1932; the Factories Act, 1934; the Trade Disputes
(Amendment) Act,1934 and 1938.”

Some more acts enacted include the “Bombay Trade Disputes Conciliation Act, 1934; the
Bombay Industrial Disputes Act, 1938; the Payment of Wages Act, 1936; the Workmen’s
Compensation (Amendment) Act, 1933; the Children’s (Pledging of Labour) Act, 1933; the
Indian Dock Labourers Act, 1934, the Maternity Benefit Acts in different provinces and the
Mines Maternity Benefit Act, 1941, the Bombay Shops and Establishments Act, 1948.”

1.1. Labour Law in India Post Independence

The Constitution of India, which came into force on January 26, 1950, retains the old division
of powers between the union and states as in the previous Government of India Act, 1935. An
important factor that is not much recognized, but which still prevails in many organised
sector units is fixing and revising wages through collective bargaining. The course of
collective bargaining was influenced in 1948 by the recommendations of the Fair Wage
Committee, which reported that three levels of wages exist – minimum, fair, and living.
These three wage levels were defined and it was pointed out that all industries must pay the
minimum wage and that the capacity to pay would apply only to the fair wage, which could
be linked to productivity3. The Constitution of India in its preamble has declared that it aims
at securing for all citizens- justice, social, economic and political.‘ In Balmer Lawrie
Workers’ Union, Bombay and Anr. v. Balmer Lawrie & Co. Ltd. and Ors. 4 The fundamental
assumption made by the Supreme Court was that all workers in an industrial enterprise or in

3
Supra note 77 at 214.
4

7
an industry be represented by a recognized union. In the MRF Unified Employees case, this
case was also referred to.

Tata Locomotive and Engineering Co. in Kalindi and Others v. Tata 5 The Supreme Court
held that no right to representation as such exists unless the corporation acknowledges that
right through its standing orders. In Bharat Petroleum Corporation Ltd. v. Maharashtra
General, the decision was reiterated. Union & Ors of Kamgar . The Supreme Court laid down
rules and procedures to be followed in the Food Corporation of India Workers Union vs.
Food Corporation of India and Others to determine the democratic character of trade unions
through the 'Secret Ballot' system.

These objectives and social goals, for which the Indian Constitution has been founded, reflect
the concern and dedication of the people of India to establish a really welfare State for the
good of all people irrespective of caste, language, religion and belief. The executive,
legislative and judiciary processes are thus enjoined to adhere to this social philosophy and
secure content of social services for the people6.

The relevance of the dignity of human labour and the need for protecting and safeguarding
the interest of labour as human beings has been enshrined in “Chapter‐III (Articles 16, 19, 23
& 24) and 7 Chapter IV (Articles 39, 41, 42, 43, 43A & 54)” of the Constitution of India
keeping in line with Fundamental Rights and Directive Principles of State Policy. Labour is a
concurrent subject in the Constitution of India implying that both the Union and the state
governments are competent to legislate on labour matters and administer the same. The bulk
of important legislative acts have been enacted by the Parliament.

Labour legislation that is adapted itself to the economic and social challenges of the modern
world of work fulfils three crucial roles: it establishes a legal system that facilitates
productive individual and collective employment relationships, and therefore a productive
economy by providing a framework within which employers, workers and their
representatives can interact with regard to work-related issues, it serves as an important
vehicle for achieving harmonious industrial relations based on workplace democracy; it
provides a clear and constant reminder and guarantee of fundamental principles and rights at

6
AIR 1958 SC 34.

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work which have received broad social acceptance and establishes the processes through
which these principles and rights can be implemented and enforced.

Chapter 2: Industrial Disputes

Industrial Disputes have adverse effects on industrial production, efficiency, costs, quality,
human satisfaction, discipline, technological and economic progress and finally on the
welfare of the society. A discontent labour force, nursing in its heart mute grievances and
resentments, cannot be efficient and will not possess a high degree of industrial morale.
Hence, the Industrial Dispute Act of 1947, was passed as a preventive and curative measure.
The goal of legislation dealing with industrial relations is very much to ensure harmony
between employers and employees as well as providing economic justice. The growth of any
industry can only occur if its production continues to rise, and such a scenario is impossible
unless the industry can function without unnecessary hindrances.
One of the most important factors that determines whether industries can continue to thrive is
the relationship among the management of the industry and the labour force that works for it.
Therefore, any legislation that governs industrial relations must aim at ensuring peace
between these two facets of an industry. The Industrial Relations Act, alongside the Trade
Unions Act, is the most significant piece of legislation to ensure industrial peace.
The ideals of social and economic justice to all citizens is one of the bedrocks of the Indian
Constitution and after seventy years of Independence, is still one of the most relevant prisms
through which we try to adjudicate many of the legal issues we face in our country.
Inequality is inherent in the relationship between an employer and an employee. The
employer possesses significant capital and sometimes even political clout, and to the
employer, there are always more fish in the sea if (s)he has a problem with a particular
employee. The employee, on the other hand, is totally dependent on the employer for work
and wages, and even if they were able to find work elsewhere upon being terminated by the
employer, it would cause a lot of turmoil in their lives and possibly even put them in serious
jeopardy and threaten their financial security. Thus, without any protections, the employee is
completely beholden to the whims and fancies of the employer due to the looming threat of
the axe.
It is with this important principle in mind that the Industrial Disputes Act was signed into
law, and this is evident if we look at the preamble as well as the long title of the Act.

9
However, the researcher restricts the scope of this paper to one important protection given by
the Act – protections for workers pending the adjudication of disputes, which is enshrined in
Section 33 of the Industrial Disputes Act, 1947, with special reference to the landmark
judgement in Jaipur Zila Sahakari Bhoomi Vikas Bank vs Ram Gopal Sharma7.
Section 33 of the Act provides that the conditions of service of an employee are to remain
unchanged during the pendency of adjudication in Industrial Disputes between them.
Essentially, the employers are prohibited from sacking, arbitrarily transferring or changing
salaries and other material working conditions while the dispute is to be decided upon.
The rationale behind such a provision in the Act is quite obvious. Employers generally view
it as a thorn in their side if they have to face litigation from an employee; it costs them
valuable resources to fight cases in Court; and if they lose, it often means that they have to
put up with increased demands from the employee - sometimes even be forced to provide for
demands from all employees. Thus, the employer has no interest in having employees who
are inclined to wage legal battles against them, and view them as nothing more than
troublemakers who are bad for business. The natural reaction, on their behalf, is to fire such
troublemakers to set the precedent among their workers that such nuisances will not be
tolerated. Such behaviour, however, is against public policy and principles of natural justice
because it means that employees may not stand up for themselves against the employers –
even when the law is on their side. This can lead to mounting violations of workplace
regulations by the employer and turn labour law into nothing more than a paper tiger. Thus, it
is important for workmen to be given the protection of the law during the proceedings of
industrial disputes, be it before Labour Courts, a conciliation officer or a National Tribunal.
Yet, despite the ostensibly clear cut provision being made in the Industrial Disputes Act, it
has taken an incredibly long time for the position of law to actually reflect the objectives of
the Act. Thus, to better understand why the law took such a long period – nearly 30 years – to
be settled on what is seemingly a straightforward provision, we must analyse the landmark
cases that marked changes in judicial interpretations of Section 33, and grasp the implications
of these verdicts. Aside from the judicial interpretations, there still remain far too many
vulnerabilities that workmen face – an issue that needs legislative mending.

2.1. Jurisprudence of Industrial Dispute Resolution

For the first three years of the existence of the Act, the only recourse an aggrieved workman
could take when his rights were breached by the management was certainly not guaranteed to
7
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others (2002) 5 SCC (Jour) 15

10
bring any relief at all. At this point, the only remedy was if the government itself took notice
under Section 108. Even if the rights of the workmen were infringed and they had a cause of
action against their employers under Section 31(1), they had no legal right to legally try and
enforce it by themselves, and had to hope that the government would take charge of the
dispute.
Even if the government took up the case of the workers, this process was incredibly
cumbersome, and the government was not obligated to refer the dispute. To rectify this
problem, Section 33A was inserted into the act to create a provision whereby there would be
a fair manner for disputes to be heard regarding the violation of worker’s rights relating to
Section 33.
After an amendment in 19849, Section 33A gives a workman the right to file, in writing, a
complaint to the authority before which the matter is pending, be it a Court, Tribunal or a
Conciliation Officer. However, conciliation officers may only “take into account” the
complaint filed under Section 33A, while only Courts, Tribunals and Arbitrators are given the
legal authority to treat the complaint itself as an issue, instead of it just being a piece of the
larger industrial dispute, and actually deliver a verdict on just the complaint in and of itself.
The authority who oversees the dispute may then make an award of damages according to
Section 16 and publish its verdict according to Section 17, which the workmen may then
enforce under Section 17(a).

2.2. The Adjudicatory Process

The main question that needs to be taken into consideration by the relevant authority in any
complaint made by workmen under Section 33A is whether or not the employer and breached
the provisions in Section 33A. If yes, then the authority may go ahead and adjudicate upon
the case. So, a violation of Section 33A would be reason enough for the Court or Tribunal to
consider an application made under Section 33A. Before any award or relief is granted to the
workmen under Section 33A, the adjudicating body must first determine if the act of the
employer directly contravened one or more of the prohibitions listed by Section 33. If no
alteration has been made to the terms or conditions of service to the detriment of the
workmen, then Section 33A is not attracted. 10 Section 33 is violated when during a pending
8
Vinaya Nath v. Bihar Journals Ltd (AIR 1954 Pat 1 (DB)), per Ramaswami J.
9
Amending Act 46 of 1982 by Sec 18, wef 21 August 1984.
10
Management, Dainik Naveen Duniya, Jabalpur vs Presiding Officer, Labour Court, Jabalpur 1991 Lab IC 327,
329-30 (MP) (DB)

11
industrial dispute, the employer fires or change the working conditions of the employee.
Section 33A may also be attracted when the employer penalises the employee for any
misconduct in relation with the existing dispute, without attaining the approval of the
concerned court or tribunal before which the matter is pending, as provided for by Section 33
(i)(b).
The employees can further approach the adjudicatory body for relief in the event that they are
punished for any disputes that may not be linked to the pending matter in front of the body.
Thus, almost any sanction imposed by the employer is covered by Section 33, specifically
Section 33(2)11. Employers are thus not permitted to fire the workmen without making an
application to the adjudicatory body and obtaining their assent to the sanction as provided for
by Section 33(1) and paying one month’s wages as demanded by Section 33(2)(b).
However, if the employee himself chooses to leave his post either through abandonment or
resigning, the employer cannot be held to be in contravention of the above mentioned
provisions12. It is also a must that a dispute must already be pending adjudication in order for
a workman to be able to use Section 33A to his advantage 13. It is also necessary that a
complaint filed under Section 33A must follow the procedure given by Rule 59 of the
Industrial Dispute (Central Rules) 1957. Without such a complaint being filed, the employee
cannot seek relief under Section 33. The employee must also fit the definition of a ‘workman’
which is provided by Section 2(s) of the Act 14. The said employee must also be concerned in
the matter pending before the adjudicatory body15 and be aggrieved by the violation by the
employer of Section 33. The trade union to whom the employee belongs does not have the
legal right to take relief given by Section 33A on behalf of the employee, unless it has been
given permission to do such a thing16. Thus, only the employee can get such relief, unless he
has authorized the trade union to do it on his behalf. The burden of proof to show that the
trade union has no business filing a claim under the aforementioned Section also cannot lie
with the employer; the trade union must itself present evidence of the express authorisation
given by the workman to file a claim under the Section17.

11
Rohtas Industries Ltd. vs Dhurva Narayana Pathak, (1979) Lab IC 18,22 (Pat) (DB).
12
National Engineering Industries Ltd. vs Hanuman, (1967) 1 LLJ 883 (SC).
13
Arya Bhawan vs S. Seetharaman, (1957) 2 LLJ 680
14
McLeod & Co vs. Sixth Industrial Tribunal, AIR 1958 Cal 273.
15
Tata Iron & Steel Co Ltd. vs. DR Singh, (1965) 2 LLJ 122 (SC).
16
Khagesh Sarkar vs Tatanagar Foundry (1962) 2 LLJ 379 (SC).
17

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2.3. The Aims of the Adjudicatory Process
The object of Section 33 and 33A is to offer safeguards to workmen and tribunal that has
jurisdiction over the pending case may offer any relief if it deems fit.18
The rationale behind such provisions, as stated above, is so that the employee is not
prejudiced by the employer and his/her working conditions may not be changed to their
detriment, and outside the scope of their employment contract.
The authority in charge of adjudicating the dispute is also clearly bestowed the authority to
also adjudicate upon the complaint19, as evident from the term – “shall adjudicate upon the
complaint as if it were a dispute referred to or pending before it, in accordance with the
provisions of this Act’. However, the adjudicating authority is not under any obligation to
compel the employer to reinstate the workman as soon as it discovers a violation of Section
3320. In fact, there has been a significant amount of controversy generated on the issue of the
scope of the enquiry itself. The case of Automobile Products of India Ltd vs Rukmaji Bala 21
gave the Supreme Court a chance to deliberate upon the issue, and it ruled that the Section
lays down the authority to which the complaint is to be made in respect of issues that spring
from a violation of Section 33 and the merits of the action taken by the employer. In lay
man’s terms, the jurisdiction of the adjudicating body is not only to decide the matter, but to
also look into the merits of the particular case in question. In Automible Products, the court
rejected the notion that the tribunal’s obligation was only to determine if there was an
obligation and that no further inquiry into the facts should be made. Yet again, the issue was
brought to the Court in the matter of Equitable Coal Co Ltd. vs Algu Singh22, where the Court
simply applied the ratio of Automobile Products. Further, in Punjab National Bank Ltd. vs
Their Workmen, the court remarked that23 – “Thus there can be no doubt that in an enquiry
under Section 33A the employee would not succeed in obtaining an order of reinstatement
merely by providing contravention of Section 33 by the employer. After such contravention is
proved it would still be open to the employer to justify the impugned dismissal on the merits.
There can be no doubt that if under a complaint filed under Sec. 33A a tribunal has to deal
not only with the question of contravention but also with the merits of the order of dismissal,

18
Imperial Tobacco Co Ltd. vs Ishwar Das, AIR 1958 All 317 (DB).
19
Hindustan General Electrical Corpn Ltd vs. Bishwanth Prasad, (1971) 2 LLJ 340 (SC).
20
Ibid.
21
Automobile Products of India Ltd v. Rukmaji Bala, (1955) 1 LLJ 346 (SC).
22
Equitable Coal Co. Ltd. vs Algu Singh And Anr AIR 1958 SC 761
23
Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per Gajendragadkar J.

13
the position cannot be any different when a reference is made to the tribunal like the present
under Section 10.”
Evidently, merely the fact that there is a violation of Section 33 does not turn void any order
of discharge issued by the employer to the workman. Such dismissal can only be made void
by the decision of the tribunal either by reference under Section 10, or through a complaint
filed under Section 33.
If the order is not declared void by the relevant court or tribunal in charge of the matter, then
for all intents and purposes, the dismissal will be held to be valid.
In addition, the complaint under Section 33A must be looked at not as a part and parcel of the
original dispute between the employer and the workman, but as a separate matter in its own
right, and thus be looked upon as its own industrial dispute, much like one arising out of a
dismissal under Section 11A.

2.4. Resolution of Industrial Dispute

In Kumarhatty Co Ltd vs. Ushnath Pakrashi 24, the Supreme Court has made it clear that any
complaint made under Section 33A is to be viewed on equal footing to a complaint made
under Section 10 and the Court or Tribunal has the power to dispense with the complaint
under Section 33A using similar procedure as under Section 10. It can thus be safely assumed
that the court or tribunal is also permitted to provide relief as may be done under Section
11A. Also, the adjudicatory body has the power to order that the employer reinstate the
employee in case there has been found to be a contravention of Section 33.

The language in Section 33A indicates that the reasoning behind the addition of the section is
to create an opportunity for a speedy relief for the workman, instead of the past method of
getting a referral under Section 10(1).
The terms ‘and the provisions of this Act shall apply accordingly’ signify that the Court is
under an obligation to forward the award that it has bestowed on the employee to the
government, and Section 11A applies in such cases. After being published under Section
17A, the award is enforceable by the workman against the employer and has the same
consequence as any award made through the process of reference prescribed under Section
10. An award bestowed under Section 33A functions as res judicata to any later references
made under Section 10 of the Act25.
24
Kumarhatty Co Ltd v. Ushnath Pakrashi, (1959) 2 LLJ 556.
25
Supra 17.

14
If it is the conclusion of the Court or Tribunal that the employee is indeed guilty of the
violation of his contract or of any misconduct or which action has been taken against him,
such a finding cannot be disputed in the Supreme Court under Article 136 or by the High
Court under Article 226. However, if the adjudicating body is satisfied that the action taken
against the employee is justified by his/her conduct, and any contravention of Section 33 by
the employer is merely one of technicalities, the decision of the body stands, unless there are
present in the case clear cut reasons to support the employee’s claims.

CHAPTER 3: MISUSE OF LABOUR LAW

As clear from the language in use in Section 33(1), the employer may terminate an employee
who is involved in the current pending case, even for any misconduct that is related to the
case, however the approval of the adjudicatory body is a must for him to be able to do so.
Without such approval, the dismissal of the employee will be struck down as void. However,
under Section 33(2), the employer may first dismiss the employee and later seek the approval
of the Court.
Naturally, such a provision as has been granted in Section 33(2) was abused for a long time
by employers, and the Courts themselves have taken a long period of 30 years to settle the
position of the law on this particular issue. Employers opted to use Section 33(2) to do away
with the employee during the pendency of the dispute in the Courts after an investigation for
‘misconduct’. Following this, they would go ahead and file an application to the courts for
approval of said dismissal. However, it is pertinent to note that employees, as mentioned in
the introduction to this paper, are clearly the weaker party financially, and may not be able to
afford to or be inclined to put themselves through another expensive court battle in order to
achieve a pyrrhic victory. So, to a certain degree, any protections offered under Section 33
seemed to be meaningless.

In order to complicate matters further, there were several documented instances where the
employers simply refused to file an application before the adjudicatory body for the approval
of the dismissal of the workmen. In such cases, if the beleaguered employee did not
automatically receive a reinstatement to his post, as the remedy to any breaches of Section 33
lies only in Section 33A (and Section 10), and the employers were merely liable to
punishment imposed under the provisions of the Act, which did not include reinstatement of

15
the employee. Considering the financial status of the now unemployed workman, it places too
much of a burden upon them if one expects them to unquestioningly challenge any such
dismissal.
The Courts, for a long time, were in limbo about this particular issue. As observed by S.V
Patil J. in the Jaipur Zila Sahakari case, benches of three judges in three distinct cases in
Strawboard Manufacturing Co. vs. Gobind26, Tata Iron & Steel Co Ltd. vs S.N Modak 27 and
Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand 28 were not able to establish binding
precedent on the subject. In Strawboard and Tata Iron, the courts took the stance that if
approval was not granted to the employer to terminate the workman under Section 33(2)(b),
the dismissal would be void. As a result, the employee would be owed wages from the time
of his dismissal to the time of the rejecting of the application under Section 33(2)(b) and be
reinstated in his role. Per contra, in Punjab Beverages, the Court took the position that failure
to obtain the approval of the adjudicatory body would not render the termination void, rather,
the employer would merely be liable to penalties envisioned under Section 31 o the Act. As
such, such a punishment does not offer the employee any remedy nor does it offer the
employee reinstatement. Despite Punjab Beverages being decided nearly twenty years post
the decisions being made in Strawboard and Tata Iron, the honourable judges took no notice
to the judgments issued in these two cases. Furthermore, a decade after Punjab Beverages, a
two judge bench followed the ratio given in Strawboard and Tata Iron, without taking any
notice of the contrary opinion offered by thr Apex Court in Punjab Beverages.

The matter was finally settled by the Apex Court in Jaipur Sahakari Bhoomi Vikas Bank vs
Ram Gopal Sharma in 2002, nearly 40 years after the issue was brought in front of the
Supreme Court in Strawboard. In this case, the respondent was an employee of the Jaipur
Sahakari Bhoomi Vikas Bank as a clerk/cashier. There was already a pending dispute
between the employee and the Bank when the Bank filed a chargesheet against the employee
for misconduct and discharged him under Section 33(2). The application for the discharge for
the employee was brought before the Industrial Tribunal, Jaipur. The respondent contested
the application on numerous grounds, including the fact that one month’s salary was not paid
to him as prescribed by Section 33(2)(b). After thorough consideration, the Tribunal

26
Strawboard Manufacturing Co vs Gobind 1962 AIR 1500
27
Tata Iron & Steel Co Ltd. vs S.N Modak 1966 AIR 288
28
Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand 1978 AIR 995

16
dismissed the application. The appellants brought the matter before the High Court which
upheld the decision of the Tribunal.

When the matter was brought to the Supreme Court, the Court took notice of the disparities
and the inconsistencies in the past judgments in Strawboard, Tata Iron and Punjab
Beverages.
The Court for the most part sided with the logic used by it in Strawboard and Tata Iron. In its
critique of Punjab Beverages, that the provisions in Section 33(2)(b) need to be construed as
mandatory, and that an employer cannot take advantage of the provision in Section 33(2)
unless the complies with the obligations placed upon him in Section 33(2)(b). It cannot be
argued by an employer who does not comply with the provisions in the Section that the
dismissal is not void, and as such, he cannot take advantage of his own wrong. The court
emphasised that the provisions in Section 33(2)(b) were vital to the protection of the
employee and were a shield against unfair labour practices and exploitation by the employer.
The Court also observed that if the application for dismissal was denied by the relevant Court
or Tribunal, then it is to be considered that the employee was never dismissed. As such, the
employee does not need to do anything in such an event, and he will continue to be viewed as
an employee. Therefore, the Bench observes that there is in fact no need for the employee to
make a complaint under Section 33A. The Court rectified a previous flaw, it ruled that
employers who dismiss an employee but choose not to file an application under Section
33(2), instead placing the burden on the employee to challenge such dismissal under Section
33A are in direct contravention of the provisions that enable such dismissal in the first place,
and thus the dismissal must be held to be void. Insofar as the issue of when exactly the order
of dismissal becomes invalid, the Court ruled that it could not be considered as the date of the
disapproval of the dismissal by the relevant Tribunal or Court, and instead, the date the
dismissal occurred must be taken into consideration. The argument laid forth by many
employers which was accepted by the Court in Punjab Beverages was also taken down; the
Bench clarified that Section 31 cannot be said to provide a remedy to aggrieved employees,
as the Section was one that was penal in nature to the employers, but did not provide any
relief to the employees. As such, it was bad interpretation to read these statutes together as
they served a different purpose altogether. Thus, the Court ruled in favour of the respondents,
and upheld the judgments of the lower courts, which awarded monies to the respondents for
the time period between their “dismissal” and the verdict of the Court.

17
3.1. Reforms Required in Industrial Dispute Resolution Process
The procedures that have been prescribed by Section 33A have shifted and changed over time
through the various verdicts of the Supreme Court, yet have failed to resolve many of the
serious issues that linger to this day. The interpretation of these provisions hs ailed to live up
to the purpose with which the legislation has been created and have led to multiple court
battles.
As has been stated in a verdict given by the Karnataka High Court, Section 10 should be
drawn anew so as to enable the aggrieved employees to directly approach the adjudicatory
body before which the matter is pending and the long, winding and cumbersome process that
exists today must be done away with.
The Single Judge Bench in this decision also notes that it would be for the best that Sections
11A, 33, 33A and Section 2A are repealed and replaced with new provisions that would make
it simpler and easier for workmen to resolve their grievances when there has been an instance
of an unfair labour practice or an alteration of his conditions of employment.
Finally, it cannot be required that the employee needs to make a request to the government
for a reference in order to kick start the process of obtaining justice. The adjudicatory body
should also be given wider authority in order to decide upon the facts of the case and be given
the ability to hold detailed inquiries as to the circumstances of the case. These suggestions
would help provide for an environment where the employee is not put through the gruelling,
expensive and cumbersome process of resolving industrial disputes with the employer, and
also reduce the chances of employers trying to find loopholes in order to gain the upper hand
against the employee. Providing for equality in this industrial relationship will reduce the
chances of conflict between them and help create a stable outcome which will be more
conducive to industrial peace, so that production may grow and prosperity reaches all.

CHAPTER 4: Paternity Leave: An unexplored aspect of Labour Law

Raising a child is one of the biggest challenges of a young adult’s life. The first few months
in particular are the hardest. Women especially, need time to recover from giving birth, and
also tend to and feed their child, and so, for decades, legislation providing for maternity leave
have been on the books in most countries around the world. Perhaps this isn’t enough. After
all, parenting is not the solely the responsibility of the mother - the father has an equal right
and duty to be involved in the care of his child. In fact, a report from the ILO notes that

18
fathers who take two or more weeks of leave to be with their newborn child are more likely to
be involved with their children as they grow up29. Clearly, it is in the public interest to have
strong families and to ensure that each child is nurtured well by both their parents. Nearly
180 countries have some form of paid maternal leave, however, similar legislation for fathers
has been conspicuously absent in most parts of the world. A lack of paternal leave further
legitimises the false narrative that the father’s role in the family is the breadwinner, and any
role he plays in the upbringing of the child is incidental, at best.

The Paternity Benefits Bill, 2017, was introduced last year with the hopes of solving the
existing issues, partially by providing up to 3 months of extendable leave for fathers. Though
this bill wasn’t signed into law, this article seeks to study the judicial position on parental
benefits, the feasibility of such legislation in India, and its effects on the labour markets and
worker welfare, as well as analyse, contrast and compare the bill with paternity leave
legislation in countries such as Norway and Germany.

4.1. Changing Narratives

In the 2015 judgment of Rama Pandey vs Union of India30, the case being dealt with by
Justice Rajiv Shakhder in the Delhi High Court concerned a situation where a commissioning
mother in a case of surrogacy was declined maternity leave on account of her not biologically
giving birth. The Justice notes that the notions of what parenthood is has changed
significantly with time (which explains the provision of paternity leave in the Central
Government Service rules), yet, there appeared to be an inertia in recognising that
motherhood could be attained even through surrogacy. He further opines, “It follows thus, to
my mind, that the commissioning mother's entitlement to maternity leave cannot be denied
only on the ground that she did not bear the child.” Further, it is observed that maternity leave
can be availed even in cases of adoption of a child below the age of one.

In Priyadharsini vs Secretary to the Government, the Madras High Court held “From the
amendment proposed, it is evident that the law is marching towards upholding of rights of
women in equal opportunities in employment sector and the increase in the period of

29
Laura Addati et. al, “Maternity and Paternity at work – Law and practice across the world”, 2014,
International Labour Organisation.
30
Rama Pandey vs Union of India WP(C) No. 844/2014

19
maternity leave would reflect the concern for the proper growth and development of the
child. When the legislation is progressive, the interpretation cannot be retrogressive.”31

Further, in Deepa Sharma vs State of Uttarakhand, the HC held that “Maternity benefit is a
social insurance. There should be a system for breast feeding/ nursing care at the workplace.
The maternity leave is key for maternal and child health and family support.”32

The above judicial decisions do not talk of paternal benefits or paternal leave, but there are
two key takeaways. Primarily, the courts time and again have spoken of the importance of the
presence of parents for the benefit of the child, especially right after its birth. Secondly, the
Courts, as well as legislation, permit a woman to take maternity leave even in the cases of
surrogacy or adoption.

What is thus evident is that parental leave is not tied to just the physical act of giving birth
and the recovery from that period, it is also about taking proper care of the baby, which the
parents would not be able to do without leave from their workplace. Which means parental
leave is about parentage, not about giving birth.

Historically, Indian society has been very patriarchal in nature. Gender roles have been
rigorously entrenched in our culture and our mindsets. But over recent decades, that has
begun to change. More women are in the workforce now than at any time since the birth of
this nation. It is no longer the sole duty of men to earn the bread and butter for the family and
it is no longer the sole duty of women to tend to housework and rear the children. It is thus
ridiculous to perpetuate this notion any longer that men are not responsible for taking care of
their own children. From the flipside, it is also cruel to tell loving fathers that they do not
have the right to take leave from work to spend time with their newly born children, just as
their spouses or partners do. Studies have also shown that fathers who take leave to spend
time with their young children are likely to be more involved in the raising of their children
than those who don’t.33 Further, allowing fathers to spend time early on crucially allows them
to develop their parenting skills in the day-to-day realities of parenting, and makes them view
themselves as more of a “partner” than a “helper” to the mother in the duty of raising the
child34.
31
T. Priyadharsini vs The Secretary to the Government, W.P.(MD) Nos.9227of 2015 & 9274 of 2015
32
Deepa Sharma vs State of Uttarakhand WPSS--2175/2015
33
Heather Sandstrom, “The Negative Effects of Instability on Child Development: A Research Synthesis”,
2013, Urban Institute.
34
Erin Rehel, “When Dad Stays Home Too – Paternity Leave, Gender, and Parenting”, 2013, Youngstown State
University Journal.

20
Evidently, it is clear that the child’s interest is best served if both parents are able to spend
adequate amounts of time with them. Further, society is itself gradually shifting to a more
progressive stance on such issues, and the law should not stand in its away by backing the
status quo. With that in mind, it is important to see what the statutes provide in terms of
parental leave currently.

4.2. Existing Parental Benefits

Section 4 of the Maternity Benefits Act35, 1961, prohibits employers from employing a
woman for a period of six weeks from the date of delivery or miscarriage. Additionally,
pregnant women are protected from being given any kinds of arduous work, which includes
work which requires long hours of standing. This benefit or protection is clearly geared
towards protecting women during the physical troubles of giving birth.

The period of maternity leave, however, is a total of six months, recently expanded by an
amendment to the Maternity Benefits Act in 2017, from just over half of the current leave
period. However, there exists no statutory mandate to give parental leave to fathers, meaning
that fathers lack the ability to stay at home and care for their children, despite it being crucial
for the well-being of the child in the early stages.

Fathers that work in the private sector or in the unorganized sector are therefore not given any
statutory benefits, and any leave for these reasons is purely at the prerogative of their
employer. Male employees covered under the Central Services (Leave) Rules, however, are
entitled to 15 days of paid leave within six months of the birth of the child to take care of
both the mother and the child.

Not only is this leave period insufficient and merely a token amount, the Central Government
has declined to expand this to cover all establishments. It cannot be said that only fathers
working for the Central Government need this kind of leave – every father and every parent
requires such a leave so that the heavy burden of parenthood, especially for young and first-
time parents is evenly split, and also so that the fathers can gain crucial parenting experience.

Around the world, paternity leave is present in 79 out of 167 countries for which data can be
sourced36. Unfortunately, in most of these countries, paternity leave is still relatively
insignificant. In Tunisia, for example, paternity leave is available for just one day, ranging up

35
Section 4, Maternity Benefits Act, 1961.
36
Laura Addati et. al, “Maternity and Paternity at work – Law and practice across the world” pg. 53, 2014,
International Labour Organisation.

21
to 90 days in Iceland and Slovenia. Up until 2013, only five countries, all developed, offered
paternity leave of two weeks or more.

Recently, however, there is a growing recognition of the need to offer meaningful lengths of
parental leave. In Norway, the Gender Equality Act of 1978 mandates that parental leave
shall apply equally to both parents, meaning that fathers in the country are entitled to 46
weeks of leave at full salary, or 56 weeks at 80% pay37. In Germany, the father or the mother
can take leave for up to a year, with a mandatory minimum of two months each. In Iceland,
parental leave comes with 80% remuneration, and fathers are mandated to take at least 3
months, with another 3 months as optional.

The Paternity Benefits Bill, introduced in the Lok Sabha in 2017 attempted to make a baby
step towards the goal of attaining sufficient parental leave, proposing a maximum of two
weeks of leave at full pay, which could be availed from a period of not more than one week
from delivery to up to 3 months after the delivery of the child. Basically, this bill would make
the two weeks of parental leave available to those governed by the Central Civil Service
(Leave) Rules applicable to everyone. Dishearteningly, this bill has not passed the House as
of yet. But it is not as if the idea is one that is newly introduced. As far back as 2008, during a
motion for consideration of an amendment to the Maternity Benefits Act, several members
raised objections to the absence of a provision for paternity leave of 15 days, as
recommended by the Standing Committee on Labour in 2007.

On a more positive note, the Uttaranchal High Court, in Dr. Shanti Mehra vs State of
Uttarakhand38, held thusly: “Every female employee and male employee whether appointed
on regular basis, contractual basis, ad hoc/tenure or temporary basis have a fundamental
right to reasonable duration of maternity leave as well as paternity leave, child care leave
(CCL) and adoption leave to promote motherhood and child care under Article 21 of the
Constitution of India read with Article 42 of the Constitution of India.”

The above case concerned a doctor in a community health centre run by the government, and
therefore dealt with a government employee. But it is interesting to note that the Court
brought up parental leave in the context of a fundamental right – which means it would be
applicable to everyone, regardless of their place of employment. There have been a paucity of

37
Janna van Belle, “Paternity and Parental Leave Across the European Union”, 2016, RAND Corporation.
38
Dr. Shanti Mehra vs State of Uttarakhand, W.P No. 99 of 2015 (S/B)

22
similar judgments from the other high courts, unfortunately, but the above case is a sign of
hope that the judiciary’s standpoint on the issue is starting to shift as well.

Regarding the feasibility of parental leave, the estimate given in the Paternity Benefits Act in
2017 was a recurring cost of about 2000 crore rupees a year, as well as a one time cost of 50
crores to the exchequer. The rest would be covered by contributions from employers and
employees. In dollar figures, it would cost the government $310 million dollars, roughly
0.5% the defence budget for 2018. It is definitely a workable amount, and is arguably
something worth spending on, considering it is an investment in stronger families and a better
upbringing for our children.

4.3. Solving Gender Discrimination in Employment

Section 12 of the Maternity Benefits Act39 prevents an employer from discharging a female
employee for taking maternity leave or having children, but the ground reality is that this
provision is circumvented by concocting a false reason to fire them instead.

Gender discrimination in employment is an age-old problem not only in India, but around the
world. Several studies have shown that when two identical resumes are presented before
employers, one from a male candidate, and one from a female, the male is statistically more
likely to be offered a job. Not only this, but women in the workplace also have to deal with
the gender pay gap. Women in India make 80 paisa for every rupee earned by their male
counterparts in the same role, according to the Monster Salary Index40.

One of the biggest reasons for this is women’s perceived lack of willingness to work after
marrying or giving birth, and so employers do not feel it is worth investing in women
employees only to see them leave the workforce after they give birth to a child.

Additionally, the expansion of maternity leave to six months may actually have negative
impacts on equality in the workplace. The amendment to the Maternity Benefits Act was
hailed by many as a progressive step, ranking India amongst the leaders in offering parental
leave, at least to women. However, to many new businesses, this means that the cost of hiring
women employees would be far too high. During one interview with Forbes Magazine41, a
startup owner remarked that the amendment would make him prefer male candidates over
39
Section 12, Maternity Benefits Act, 1961.
40
“Gender pay gap scenario daunting in India, women get paid 20% less than men”, The Economic Times,
Published: March 6, 2018.
41
Suparna Goswami, “India Just Doubled Paid Maternity Leave, But It Might Actually Work Against Women”,
Forbes.com, Published: March 13, 2017.

23
females for job openings in his company, because the business could simply not afford to pay
six months salary to an employee without receiving any output.

The status quo in the legislation arguably hurts women as much as it helps them. Offering six
months of leave is great for women as it gives them an ability to stay at home and take care of
children, but it is also more likely to result in employers discriminating against women in the
hiring process. Since the statutes do not require private workplaces to offer any paternity
leave, paid or otherwise, it is simply more cost effective and hassle-free for many companies,
especially small businesses, to hire men instead of women.

Offering, or mandating that men take parental leave can be a stone that hits both of these
birds.

First of all, by making parental leave available, it is a strong signal from the government
backing the winds of change in society that are making the belief that men are equally
responsible to raise children into a mainstream belief. Over time, not only will this help
ensure a more equal distribution of responsibilities at home, but it will also shatter the belief
amongst employers that women are less likely to work after giving birth, and hence are not
worth investing in42. Parental leave for fathers is a clear signal that it is also the father’s role
to take care of children as much as the mother’s, and it helps young mothers adjust to the life
after giving birth, which can make it more likely that fewer of them would drop out of the
workforce altogether. This belief amongst employers is a large reason behind the gender
wage gap as it exists today, as in many places, there is wage parity up until women give birth
to their first child and take maternity leave. Amongst women in their 30s and 40s, the wage
gap is significantly higher compared to women in their early and mid 20s, who are less likely
to have had children at that age43.

Secondly, by making parental leave available to fathers as well as mothers, the relative
attractiveness of hiring male employees over female ones is erased44. If it is just as likely that
fathers will take leave upon the birth of their child, then there is no economic incentive for
employers to reject women solely based on the notion that it would be more expensive to hire

42
Julie Suk, “Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family
Conflict”, Columbia Law Review, 2010.
43
Francine Blau, “The Gender Wage Gap: Extent, Trends and Explanations”, Institute of Labour Economics,
2016.
44
Hila Shamir, “Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets
of Care”, Berkeley Journal of Employment and Labor Law, 2009.

24
them due to the likelihood that they would take one or two spells of maternity leave of up to
six months with full pay, but no output45.

4.4. A Proposed Model

The attempt at bringing forth paternity leave as prescribed by the Paternity Benefits Bill,
2017 is indeed quite feeble. If we are a society that believes in equal rights and equal
responsibilities, it is crucial that fathers are given the same amount of paternity leave as
women are. As stated before, if fathers are able to spend time caring for their children at a
young age, not only does it present them an opportunity to develop their parenting skills, but
it also makes them more likely to be deeply involved in their children’s lives’ as they grow
up. Not only this, such a step is key to breaking down societal gender roles that prescribe that
the woman must be the caretaker and the father must be the breadwinner.

The researcher proposes that the current period of six months’ parental leave for mothers
should be left untouched, but also the induction of a six months’ of leave for fathers through
new legislation or amendments to existing laws. Both parents should have the ability to take
their leave of six months altogether, or intermittently through a period of 1 year, so that at
least one parent can stay at home for the first year of the new-born. Alternatively, if they so
choose, both could take their leave simultaneously, and be at home for the first six months
after childbirth. This sort of policy would give parents the requisite flexibility to manage their
work and their family in a way that they find it comfortable. Clearly, such a policy would
impose significant economic burdens on employers’, which is why the researcher suggests
that the government cover an increased portion of the social security responsibility and lift
some of the burden off of the shoulders of employers.

Conclusion

A number of constitutional rights and directive principles of state policy are expressed in the
Constitution of India. Through enacting a significant number of labor laws, the parliament
and state legislatures have discharged their constitutional obligations. Throughout India,
central laws are applicable, while state laws are applicable only within the respective states.
There are some labor laws that only the central government administers; and some others
45
Michael Selmi, “Family Leave and the Gender Pay Gap”, North Carolina Law Review, 2000.

25
both the central and state governments administer. The richest source of industrial
jurisprudence is diverse constitutional judgments. Various judicial decisions are the richest
source of industrial jurisprudence. Labour laws have been changing from pre vedic period to
post vedic period, Hindu kingdoms periods, British periods and then in independent Indian
period. In the previous periods due to the powers of the kings the conditions were not
tolerable but in independent India due to the international influence and the influence of the
UNO and ILO, with their various Conventions, Recommendations and Covenants passed, the
condition of the Indian labour has under gone a great change. In the latter period, slavery was
at its peak if we look at the contemporary condition then according to the Global Slavery
Index, a maiden ranking of 162 countries for their record in modern-day practices of slavery
says there are 30 million slaves living in the world as now, half of them in India i.e. 13.9
million and as per ILO statistics, was 21 million46.
Despite certain recent developments which may be largely considered as one-off incidents,
most trade unions have managed to foster an environment so as to enable a healthy discussion
between the workers and employers with respect to any demands the workers may have.
Furthermore, trade unions in India have, over the period of time, ensured to provide a forum
to facilitate better industrial relations, industrial growth and improve productivity.
The Labour Ministry has proposed changes in Trade Unions Act, 1926 with an aim to give
trade unions wider recognition at central and state level. Accordingly, it is proposed to amend
the Trade Unions Act, 1926 to incorporate new Sections 28A and sub-section (2A) after
Section 29 (2) of the Act. The ministry invited comments on the Draft Trade Unions
(Amendment) Bill, 2018 from the stakeholders to finalise the changes. 

Labour points to human capital. It must be noted at the beginning that those who were
unorganized yesterday are organized today, and those who are unorganized today hope
tomorrow to become organized. In addition, certain benefits, advantages and procedures,
popularly known today as legitimate workers' rights, are those that have arisen as a result of
the struggles of the previous generation of workers. However, even before the industrial
revolution took place, oppressive labour conditions were prevalent. The key goal of labour
laws is to take advantage of globalization and economic development and to bridge the large
gap between the current social infrastructure and the aspirations of the masses, both poor and
downtrodden. It takes time to amend labour laws, which should not be at the detriment of
social welfare and labour protection.
46
The Tribune, 1-2, October 20, 2013.

26
In respect of Paternity Leave, it is a critical part of labour welfare legislation in any country.
The unforgiving demands of cutthroat competition in the economy cannot lead to people’s
ability not only to have children – but care for them – be overrun. Further, we can no longer
hold antiquated beliefs about the role of women solely as wives, mothers and homemakers.
The modern woman is as integral a part of the workforce as a man. Offering leave to only
women only further perpetuates this notion, however. Therefore, it is essential to expand
parental leave benefits to men as well, not only to rid the workplace of gender inequalities in
hiring and pay, but also offer men a chance to experience the day-to-day aspects of parenting,
and attach themselves to the lives of their children. Such measures would be expensive, yes,
but it is clearly a requisite step to ensure gender equality in the workplace, shatter societal
stereotypes about gender, and strengthen families all across the country. Thus, it can be said
that globalization means interaction of global economy sources, in all sectors of economy for
the welfare, uplift and development of world humanity, functions of the countries not coming
in the way. The workers demanding better conditions and rights to organize so as to improve
their standard of living. Hence development of labour laws is a continuous process. The
social workers, ILO, Trade Unions at National and International level, Non-Government
Organization and political parties have played a commendable role in history, in the
development of labour laws in India.

BIBLIOGRAPHY

Cases Cited:

Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others (2002) 5
SCC (Jour) 15
Vinaya Nath v. Bihar Journals Ltd (AIR 1954 Pat 1 (DB)), per Ramaswami J.

27
Management, Dainik Naveen Duniya, Jabalpur vs Presiding Officer, Labour Court, Jabalpur
1991 Lab IC 327, 329-30 (MP) (DB)
Rohtas Industries Ltd. vs Dhurva Narayana Pathak, (1979) Lab IC 18,22 (Pat) (DB).
National Engineering Industries Ltd. vs Hanuman, (1967) 1 LLJ 883 (SC).
Arya Bhawan vs S. Seetharaman, (1957) 2 LLJ 680
McLeod & Co vs. Sixth Industrial Tribunal, AIR 1958 Cal 273.
Tata Iron & Steel Co Ltd. vs. DR Singh, (1965) 2 LLJ 122 (SC).
Khagesh Sarkar vs Tatanagar Foundry (1962) 2 LLJ 379 (SC).
Imperial Tobacco Co Ltd. vs Ishwar Das, AIR 1958 All 317 (DB).
Hindustan General Electrical Corpn Ltd vs. Bishwanth Prasad, (1971) 2 LLJ 340 (SC).
Automobile Products of India Ltd v. Rukmaji Bala, (1955) 1 LLJ 346 (SC).
Equitable Coal Co. Ltd. vs Algu Singh And Anr AIR 1958 SC 761
Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per
Gajendragadkar J.
Kumarhatty Co Ltd v. Ushnath Pakrashi, (1959) 2 LLJ 556.
Strawboard Manufacturing Co vs Gobind 1962 AIR 1500
Tata Iron & Steel Co Ltd. vs S.N Modak 1966 AIR 288
Punjab Beverages Pvt. Ltd., Chandigarh vs Suresh Chand 1978 AIR 995

Books & Articles

● Erin Rehel, “When Dad Stays Home Too – Paternity Leave, Gender, and Parenting”,
2013, Youngstown State University Journal.

● Francine Blau, “The Gender Wage Gap: Extent, Trends and Explanations”, Institute of
Labour Economics, 2016.

● Heather Sandstrom, “The Negative Effects of Instability on Child Development: A

Research Synthesis”, 2013, Urban Institute.

● Hila Shamir, “Between Home and Work: Assessing the Distributive Effects of
Employment Law in Markets of Care”, Berkeley Journal of Employment and Labor Law,
2009.

28
● Janna van Belle, “Paternity and Parental Leave Across the European Union”, 2016,
RAND Corporation.

● Laura Addati et. al, “Maternity and Paternity at work – Law and practice across the
world” , 2014, International Labour Organisation.

● Michael Selmi, “Family Leave and the Gender Pay Gap”, North Carolina Law Review,
2000.
● Julie Suk, “Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law
and Work-Family Conflict”, Columbia Law Review, 2010.

● Suparna Goswami, “India Just Doubled Paid Maternity Leave, But It Might Actually
Work Against Women”, Forbes.com, Published: March 13, 2017.

29