Grievance Redressal Mechanism in India: Labour Law

Introduction

The history and evolution of legislation on Industrial Disputes is rich and full of amendments, starting with the 1920’s till now when we have had a complete revamp of the legislating machinery. The Trade Disputes Act, is where the evolution of Labour Laws in our country starts, the said act was enacted only for the purpose of providing a legally backed mechanism for preventing strikes and did not concern itself with industrial disputes per se. Thereafter in 1929 we had the Trade Unions Act which provided some power to the laborers to form coalitions and protest collectively against injustices done to them as a whole but there still wasn’t a grievance redressal mechanism, on an individual level, for the workers.[1] Then finally in 1947 The Industrial Disputes Act (IDA) was enacted which gave a comprehensive set of laws that set out not only the rights of the workers and duties of the employers but also provided for various dispute resolution mechanisms such as conciliation officers, setting up of the Labour Courts, Tribunals and arbitration[2]. It also introduced in-house mechanisms such as a works committee and a grievance redressal committee, the latter is the concern of this paper. The grievance redressal committee is a not very popular subject for discussion but this paper will show how this mechanism has impacted the rights of the workers and how the Courts of India have, if they have, afforded this right to the workmen. In 2020, implementation of three new codes has been proposed and assented to by the President to compile and make labour laws comprehensive thus changing the fabric of the law which will also be discussed specifically with regards to the grievance redressal mechanism. The paper will also try to draw parallels between the two legislations. First, we need to understand what the grievance redressal is under the labour legislations.

Grievance Redressal Mechanism

Recommendation 130 of the International Labour Office[3] lays down the principle of grievance redressal and sets out certain guidelines to help countries implement this recommendation if they choose to do so. This recommendation was made keeping in mind the need of an individual worker to submit grievances to the employer without fearing prejudice and that any such grievance submitted should be examined following proper procedure.[4] A grievance can essentially be described as a problem that arises amongst individual workers due to some infringement of their right, given by law or a practice that is now considered essential as part of the work.[5] Usually these grievances can be effectively resolved without a long drawn out procedure as they usually arise out of a misunderstanding or an honest mistake.[6] India has adopted this mechanism by the amendment of 2010 that included Section 9C under Chapter III-B of the IDA.[7] It is also encompassed under the Industrial Employment (Standing Orders) Act, 1946 (Standing Orders) which lays down that any industry with over 100 workers has to have standing orders and that one of the orders should be for the constitution of the grievance redressal committee.[8]

Section 9C gives a comprehensive set of guidelines for the set-up of the grievance redressal committee whose primary job is to ensure that the workers issues are addressed in a speedy manner, which is why the proceedings should be completed within thirty days as according to (6) of the section.[9] There should also be an equal number of workers and employers not exceeding six members on the committee with atleast half of them as women as laid down in (2) and (3) of the Section.[10] An appeal can also be made, which has to be disposed of within thirty days of application according to (7).[11] The only restriction to the section is that there should be atleast 20 workmen in the establishment for this Section to be applicable.[12] The above condition is still less than that provided in Standing Orders as therein the applicability would only lie when there were hundred or more workmen, which wasn’t helping workers in small establishments who still felt the need for grievance redressal.[13] It is also important to note that this mechanism does not hinder the right of the workers to approach any other forum for dispute resolution.

The grievance redressal committee is also not the first step in the process of relief seeking, the worker first applies to a designated officer and if not satisfied then to the head of the department either through his supervisor or on her own, if still not satisfied then the grievance redressal committee is approached. [14] All of these steps need not be followed in cases of dismissal or suspension of workers. This addition of Section 9C came when it was noted that not all issues can be solved by Unions specially on the individual level and that in-house procedures as decided by the employer were not always fair on the workers especially in establishments with less than hundred workers. It was also noticed that a grievance redressal mechanism in smaller establishments was easier and more productive as the workers and employers had a closer relationship than that in bigger establishments thus leading to amicable solutions in a cost efficient and speedier manner.

Case Law on Grievance Redressal

Since grievance redressal is in-house there isn’t much case law on the matter as it usually concerns itself with petty disturbances and mistakes on part of either the worker or employer and the larger issues are considered by the works committee or the conciliation officer. However, there has been a decision on the binding capacity of the order passed by the grievance redressal committee in the case of Secretary A.P.D. Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors[15] wherein the Supreme Court held that the order passed by the grievance redressal committee is not binding but is merely a suggestion to the State authority, which can either be followed or disregarded by the State according to its discretion. The Court also said that the committee cannot be a public quasi-judicial forum and that it is only an in-house committee and its decision is only applicable on the workers and employers of that particular establishment.[16] This case was also cited in the recent case of Ansari Shahana Tabassum Khaliluddin vs. Chairman/President, Zilla Nivad Samiti and Ors.[17] wherein it was reiterated that the decision of the committee is merely a suggestion/direction but does not have any binding characteristics and is bound to be struck down in case it is tried to be implemented as such.[18]

The above case laws show that although this mechanism exists it is not binding and can be disregarded by the management if not approved of by a competent authority and that makes this process redundant. I say this because the above decisions make it easier to appeal the direction given by the grievance redressal committee if either party is not happy with it, thus making the process longer and more drawn out than necessary and defeats the purpose of the committee. This specially benefits the employer as they will have the resources to appeal the decision and make it into a lengthier process which will only harm the worker who is already aggrieved, without enough resources to fight the management on fair grounds. This means that although Section 9C was implemented for all the right reasons, to help the workmen, the Court’s interpretation shows that in the end. Result will be to the benefit of the employer.

Alternatives to Grievance Redressal

There are various alternatives that can be used other than grievance redressal, it can also be said that grievance redressal is the first step in the process of dispute settlement. All the authorities for dispute settlement are included under Sections 3 to 10A of the IDA.[19] Starting with Section 3 we have the works committee which can be established in an industry having more than hundred workmen on any given day in the preceding twelve months and the number of workmen cannot be less than that of the employer on the committee. The objective of the committee is to promote and secure amity and good relations between the employer and workmen and to comment on matters of common interest and to compose any material difference of opinion as said by (2) of the section.[20] The works commits itself to day to day issues that might arise and the committee can only have upto twenty members as said in Rule 39 of the Industrial Dispute Central Rules, 1957.[21] The preceding point has also been reiterated in the case of Kemp and Co. Ltd. Vs. Their Workmen[22] and that the decision of the committee cannot go beyond recommendation although it does carry significant weight. There are many similarities between the works committee and grievance redressal committee, the main differences being the establishments they are applicable to and the number of members on the committees. Next, we have Sections 4 and 5 that discuss conciliation and include a conciliation officer and a board of conciliation.[23] Conciliation officer under Section 4 is appointed by the appropriate government as a mediator and promotor of settlement of industrial disputes as laid down by (1) of the Section.[24] It is important to note that she has no power to decide and can only make recommendations to the appropriate government, detailing how to handle the situation.[25] The Board of Conciliation under Section 5 has to be established by notification in the official gazette and may consist of a chairman and two or four members as the appropriate government thinks fit and the Chairman has to be an independent person as mentioned in (1), (2) and (3) of the section.[26] The powers of the conciliation officer and Board of conciliation are almost similar, though in some instances the Board has greater powers such as they may examine any person on oath and they have more time than the officer to examine the situation, specifically a period of two months unlike the Officer who is given only fourteen days to reach a conclusion.[27] As also said in the case of Sasmusa Sugar Works Ltd v. State of Bihar[28] the conciliators can only pass on their reports, of whether the conciliation has succeeded or not, to the appropriate government and have no power to pass any final orders.[29] This is followed by a Court of Inquiry which is established by the appropriate Government under Section 6 of the IDA to look into any matter relating or relevant to the dispute, it can be set up without any consent from the parties to help the government in reaching a better decision.[30] We then have the adjudicating authorities like the Labour Court, the Industrial Tribunal and the National Tribunal under Section 7, 7A and 7B respectively, these are established by the discretion of the appropriate authority in cases where no amicable solution can be arrived at.[31] They are essentially quasi-judicial institutions that consider the matters falling under the Second and Third Schedules of the IDA.[32] The national tribunal however can only be constituted by the Central Government and are to consider questions of national importance, or decide on matters in establishments that are present in two or more states that are interested in or likely to be affected by the decision.[33] Lastly, we have the voluntary reference to arbitration under Section 10A, wherein it is upon the parties to refer the dispute to arbitration and may even transfer the dispute from a Labour Court or Tribunal transfer it to arbitration.[34] (5) also lays down that the Arbitration Act of 1940 will not be applicable to this type of arbitration and will rely solely on the arbitration agreement clause.[35]

All these ways are more comprehensive and cover more ground than grievance redressal but the most efficient way in terms of speed and cost is still grievance redressal as it concerns matters on the individual level that do not necessarily require the involvement of the government or the trade unions unless there has been a gross miscarriage of justice which is usually avoided as the committee consists of equal representation of workers, employees and women.

Grievance Redressal Mechanism under The Industrial Relations Code, 2020

The grievance redressal mechanism has been altered in the new Industrial Relations Code of 2020, it is now under Section 4 of Chapter II of the Code.[36] The basic requirements of twenty workmen in the establishment and equal representation of workers and employers on the committee still remains the same. The limit on number of members present on the committee has been increased from six to ten, to maybe provide for more opinions on the matter and to not keep the power concentrated in a small group of people.[37] The requirement that there have to be equal men and women has been altered to, women present in the committee have to be in the same proportion as women present in the workforce,[38] this might be a boon for an establishment with largely female workers but for establishments where men considerably outnumber women, the representation in the committee will not be as strong as in the old act, in my opinion. A new qualifier is that any grievance occurring has to be filed in a period of one year and no application will be entertained if submitted after the one year period as laid down in (5).[39] The time limit for completion of proceedings remains the same at thirty days under (6).[40] (7) of the Section lays down that the decision of the committee will have to be by a majority, that is more than half, and if no such majority is reached then it will be said that the committee could not arrive at a decision, this addition makes the process clearer and leaves less space for ambiguity.[41] In the previous act there was no bar to appeal to the decision of the committee but the new act just provides for a time limit and the forum that the aggrieved party can approach to appeal, given under (8) of the new Section. The time limit is either after the completion of the thirty days under (6) or within sixty days of the decision by the committee, the appeal may be filed to the conciliation officer through the trade union of which the worker is a member.[42] The new code Under Section 4(9) also specifies that if the worker is discharged, dismissed, retrenched or dismissed then the issue will turn into an industrial dispute, triable by other adjudicatory forums. (10) also provides for an appeal from the decision of the conciliation officer to the tribunal for adjudication within forty-five days of the decision of the conciliation officer. Lastly, (11) of the Section also provides for a limit two years within which the application under (10) might be filed. Section 99 of the Code provides further powers to the appropriate government to make more rules as they may deem necessary and Section 99(2)(c), (d) and (e) deal with further rules on grievance redressal concerning selection of members for the committee, process of filing an application under Section 4(5) of the Code and manner of filing the appeals under Section 4(8) of the code respectively.[43]

The section of grievance redressal has been overall strengthened and expanded upon by the new code and has also been clarified for the purposes of the act and for a smoother process, the older act did not clearly mention which forum could the aggrieved party approach for an appeal but herein there are two steps of appeal provided for.[44] The only issue I can perceive from the new section is the representation of women under Section 4(4) proviso, which has limited the number the women in the committee to be directly proportional to the number of women present in the workforce which may affect the women workers in establishments where the proportion of women to men is inferior.

Conclusion

This paper has tried to provide a detailed analysis of when the grievance redressal mechanism was introduced, what is its applicability and how it has does it function. It should be noted that in theory the committee seems to be a good mechanism for workers to air their concerns but looking at the Court’s interpretation of the committee and its decision value, it does not seem to be beneficial. The worker will approach the committee but if there is no weight to the decision of the committee then the employer can choose to ignore it and the worker ends up right where they started. No worker will have the resources, if not backed by the trade union, to fight the employer in the Courts of law. An application can be made to the appropriate government but seeing the state of the government in current times and their capitalistic mindset, do we really believe that the worker will be successful in attaining the relief she desires. The new code however, has provided for a clearer mechanism by laying down the steps of appeal and by not involving the appropriate government. It has instead given the power to the worker to appeal to forums directly or through the trade union she is a part of. The power that the committee held seems to have been strengthened, by making it appealable, it puts a certain responsibility on the committee to get the decision right the first time around, thus giving a sense of security to the aggrieved. How the provisions of the new code will play on the ground remains to be seen as they still have to be made official by a notification. The thing to observe will be to see how the Courts interpret the provisions of this new legislation, as the grievance redressal mechanism has been made more comprehensive but the alterations to the definitions of major words such as Industry, workman have been narrowed which is a cause for concern.

[1] Singh, A., 2017. Introduction To Industrial And Labour Laws. 4th ed. Lexis Nexis. [2] Industrial Disputes Act, 1947. [3] Inclusive Labour Markets, Labour Relations and Working Conditions Branch (INWORK), 2018. Grievance Handling. [online] Geneva. Available at: https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_622209.pdf [Accessed 28 November 2020]. [4] Ibid. [5] Ibid. [6] Ibid. [7] Industrial Disputes Act, 1947. [8] Industrial Employment (Standing Orders) Act, 1946. [9] Industrial Disputes Act, 1947 [10] Ibid. [11] Ibid. [12] Ibid. [13] 2007. Indian Law And Labour Relations: Cases And Materials. 3rd ed. New Delhi: Indian Law Institute, p.387. [14] Ibid. [15] Secretary A.P.D. Jain Pathshala & Ors vs Shivaji Bhagwat More & Ors [2011] MANU/SC/0814/2011 (Supreme Court of India). [16] Ibid. [17] Ansari Shahana Tabassum Khaliluddin vs. Chairman/President, Zilla Nivad Samiti and Ors. [2017] MANU/MH/3638/2017 (Bombay High Court). [18] Ibid. [19] Industrial Disputes Act, 1947. [20] Ibid. [21] Industrial Dispute Central Rules, 1957. [22] Kemp and Co. Ltd. Vs. Their Workmen [1955] IILLJ (Supreme Court f India), p.48. [23] Industrial Disputes Act, 1947. [24] Ibid. [25] Ibid. [26] Industrial Disputes Act, 1947 [27] Ibid. [28] Sasmusa Sugar Works Ltd v. State of Bihar [1955] AIR (Patna High Court), p.49. [29] Ibid. [30] Industrial Disputes Act, 1947. [31] Ibid. [32] Singh, A., 2017. Introduction To Industrial And Labour Laws. 4th ed. Lexis Nexis. [33] Industrial Disputes Act, 1947. [34] Ibid. [35] Ibid. [36] The Industrial Relations Code, 2020. [37] Ibid. [38] The Industrial Relations Code, 2020 [39] Ibid. [40] Ibid. [41] Ibid. [42] Ibid. [43] Ibid. [44] Associates, J. Sagar, 2020. Implications Of The Industrial Relations Code, 2020. [Blog] Mondaq, Available at: https://www.mondaq.com/india/employee-rights-labour-relations/996474/implications-of-the-industrial-relations-code-2020: [Accessed 29 November 2020].