The Supreme Court of India through an order of 7 April 2017, made available today, granted permanency to 2,700 municipal safai workers who were found to be employed through a ‘sham and bogus contract’ by the BrihanMumbai Municipal Corporation (BMC). The Supreme Court, while confirming the 22 December 2016 ruling of the High Court at Bombay which concluded, that the Municipal Corporation engaged in such a paper arrangement only to avoid giving status of permanency to the concerned workers and engaged their services through labour contractors, when in fact the work is integral to the services the municipality has to offer round the year but also closely and directly supervised and controlled by the BMC, the principal employer in this case.
The decision of the High Court has not just upheld the 13 October 2014 award of the Mumbai Industrial Tribunal but also addressed the responsibility of employers in ensuring the dignity of labour and particularly that of scavengers who are exploited for both their class background and their caste origins by employers by using their dominant position in employment relations. The ruling marks a step forward in readdressing the enormous injustice caused through the infamous Supreme Court ruling of 2001 in the SAIL case wherein the court ruled that abolition of contract labour cannot automatically translate into permanency for the same workers.
The High court recognised that the 2700 (contract) workers are working shoulder to shoulder with 28000 odd permanent workers engaged in keeping the City clean. While the permanent workers are accorded all the facilities and security of tenure, the working and living conditions of the concerned workers,are pitiable. The way they have to live, the manner in which they are made to work, is below human dignity.
Recognising the responsibility of the BMC towards both, the citizen’s right to a clean city and the fundamental rights of workers, the High Court judgement says:This fundamental right and the mandatory duty, cannot be achieved by subjugating the fundamental rights of the workers to basic human dignity. The anxiety to find innovative ways to maintain a clean city can be understood, but in a welfare state, cleanliness for one class of citizens cannot be achieved by engaging in ‘slavery’ of the others. …, the Corporation, a public body, hastaken advantage of its dominant position to exploit this lowest strata of the community, disregarding various welfare measures suggested by the State. In the circumstances, setting aside the award in the equity jurisdiction of this court will be a travesty of justice.
Furthermore, the High Court reaffirmed the recent judgement of the Supreme Court [State of Punjab vs. Jagjit Singh] in which the principal and law of equal pay for equal work was upheld. Paraphrasing the Supreme Court ruling the High Court said: policies to create artificial parameters to deny fruits of labour to an employee engaged for the same work cannot be countenanced in a welfare state. Such an action, besides being demeaning,shocks the very foundation of the human dignity, as one who is compelled to work on lesser wages does not do so voluntarily. The Apex Court observed that such action constitute an act of exploitation emerging from a dominant position.
The High Court also critically strengthened labour jurisprudence in particular reasserting the power of the Industrial Tribunal in stating that if writ court finds that the Tribunal could have given better reasons, automatically an order setting aside the Award may not be passed, without looking into all the aspects of the matter. The entire gamut of raising a demand, conciliation proceedings, reference to the Industrial Tribunal, is for the purpose of achieving industrial peace. … Primary obligation and duty of an industrial forum is to see that peace is sustained between the management andthe employees in an industry. It was observed that that is why the enactments provide a mechanism for arriving at a settlement to see that the growth and progress of industry is not scuttled by taking recourse to such methods, which will eventually affect the national growth.
This said, it must be noted that the Supreme Court is at its most parsimonious in relation to the working class. In its decision on the back wages to be paid to the workers the court reduced the amount payable to from year 2014 against 2007 as ruled by the Industrial Tribunal and upheld by the High Court. The Supreme Court also obtained consent on the issue of monetary benefits so that it does not become a precedent for the future. This confirms the dominant conservatism that rules the highest court of the land.
That such rulings, against clear violations of law,are not a matter of course and take so long is a reflection of how deeply institutionalised exploitation of the working class has become in the present time. Perhaps the High Court recognised what it’s taken when it said: One does not have to go through years of such sub-human existence to complain of exploitation. The various ameliorative measures contemplated by the State for this class, their extreme backwardness tied up with the caste system, the lowly menial work they are forced to engage into by a public body which is bound to follow the ideals of the Constitution of India. Apart from the 2,700 workers who have just won permanency 3,000 contract workers of BMC wait in line collectively in three separate industrial disputes in mirror situations as do hundreds of thousands of contract workers across the country. The blatant violation of law in the illegal use of contract workers is an extreme act of injustice, inequality and discrimination. The executive is duty bound to reverse this both in the public and the private sector just as the judiciary is duty bound to bring these cases to a speedy conclusion when injustice is brought before it.
The New Trade Union Initiative salutes the 2,700 workers, the members of its affiliate Kachra Vahatuk Shramik Sangh, and its leadership for their struggle, their determination, their courage and above all their patience as they fought their way through from 2003. We derive strength and inspiration from this victory and commit ourselves to bringing contract workers into the union fold in ever larger numbers for that is the only way can we build union power that can be decisive in turning the tide of exploitation and discrimination.
Gautam Mody
General Secretary