Grievances under the Industrial Disputes Act

A grievance can be defined as the sense of resentment or antipathy typically arising out of a feeling of being wronged and as an expression of discontent made to an organization in relation to the services rendered by it and related to its products, where a certain standard is explicitly or implicitly expected. A grievance is thus any sort of dissatisfaction, which needs to be redressed. In the context of this project thus it can be said that a grievance is any discontent which is harboured by an individual employee with any aspect of the organization wherein he is employed. It can be real or imaginary, legitimate or ridiculous, rated or unvoiced, written or oral, it must however, find expression in some form of the other [1] in order to facilitate the smooth functioning of the individual in the organization and of the organization as a whole. [2] Discontent or dissatisfaction per se cannot be said to be a grievance. Such discontent initially finds expression in the form of a complaint. When a complaint of this nature remains unattended to and the employee concerned feels a sense of lack of justice and fairness, the dissatisfaction grows and assumes the status of grievance. [3] Usually grievances are indicative of problems stemming from interpretation of perceived non-fulfillment of an employees expectation from the organization. This understanding of the ambit of a grievance is also in accordance with the definition set out in the ILO Examination of Grievances recommendations which states.

“The grounds for grievance may be any measure or situation which concerns the relations between the employer and worker or which affects or may affect the conditions of employment of one or several workers in the undertaking when that measure or situation appears contrary to provisions of an applicable collective agreement or of an individual of employment, to works rules, to laws or regulations or to the custom or usage of the occupation, branch of economic activity or country, regard being had to the principles of good faith.”

GRIEVANCE: DEFINITION AND INCEPTION

In the year 1998, the Indian Government ratified Article 1 of the Convention 122 [4] of the International Labour Organisation. [5] Article 1 of the Convention [6] it can thus be concluded confers upon workers the right to have redressal mechanisms to their grievances and thus the Indian Government is now by way of ratifying the Article 1 of the Convention 122 obligated to look into such interests of the workers . [7] Having recognized the existence of a right to redressal of grievances, it is necessary for the purpose of this project to look into the reason behind why workers may have grievances as well as the development of grievance redressal mechanisms over time and finally conclude on the need for an individual grievance redressal mechanism under the Industrial Disputes Act.

Grievances may occur for a number of reasons: The primary reason for a large number of individual grievances can be attributed to discontent with regard to wage fixation and wage revision, leading employees to feel that they are underpaid in comparison to their peer. Another factor contributing to a large number of grievances amongst individuals is due to inferior working conditions and restrictive practices towards production efficiency. Grievances amongst workers may also arise due to a perceived notion of a biased attitude harboured by the employers towards the employee. Grievances may also arise due to the inability of a worker to adjust in the work environment and efficiently work with his coworkers. Grievances amongst workers may also arise because of certain other factors such as issues relating to violations in respect of promotions, transfer procedures, fines and granting leave. [8]

At present, the legal system in India is equipped with three legislations for the purpose of dealing with grievances of employees working in industries. These legislations are namely [9]

• The Industrial Employment (Standing Orders) Act, 1946, which requires that every industrial establishment employing more than a hundred workers should frame standing orders, which should contain primarily a provision for the redressal of grievances of workers against unfair treatment and wrongful actions by the employer or the supervisor at that establishment.
• The Factories Act, 1948, which mandates the appointment of a Welfare Officer in every factory ordinarily employing five hundred or more workers. These Welfare officers are obligated to attend to and resolve the complaints and grievances of workers and implementation of the existing labour legislation.
• The Industrial Disputes Act, 1947, amended in 1965 which provides for the redressal of individual disputes relating to discharge, dismissal or retrenchment.

The existing labour legislations however are not being implemented properly by employers and the grievances of workers are largely remaining unresolved. Welfare officers entrusted with the task of looking after the interests of workers have also shirked their responsibilities in the organized industry sector. [10] It is unfortunate thus that the public sector, which should set up an example for the private sector, has not been implementing Labour laws properly. In India, a Model Grievance Procedure was adopted by the Indian Labour Conference in its 16th session held in 1958 and presently the Indian industries are adopting either the Model Grievance Procedure or procedures formulated by themselves with modifications in the Model Grievance Procedure thus yielding a majority of grievance redressal procedures voluntary in nature.

The Industrial Disputes Act, 1947 [11] intends to remedy this very inconsistency which has spawned as result of the neglect of the employers towards existing labour legislations and it seeks to achieve its objective through the intervention of the State in industrial disputes. The concern of state in matters relating to labour is a product of its obligations to protect the interest of industrial community, while at the same time fostering economic growth in almost all countries. [12] The state has assumed powers to regulate labour relations in some degree or the other. In some, it has taken the form of laying down bare rules or observance by employers and workers; in others, the rules cover a wider area of these rules.

As far as the evolution of grievance settlement procedures is concerned, from the Indian perspective state intervention in labour matters can be traced back to the enactment of the Employers and Workmen’s Disputes Act 1860 which envisaged the swift disposal of disputes relating to the wages of workmen employed in the railways, and other public works, by Magistrates. The Third Five Year Plan formulated a Code of Discipline for industries which was voluntarily accepted by the management. It facilitated the industrial disputes to be mutually settled and litigation to be avoided as far as possible. The third Five year plan also brought about the establishment of Works Committees and workers organizations. [13]

The notion of incorporating alternative dispute mechanisms to solve labour disputes can be traced to have had its inception from the Third Five Year Plan. One of the mechanisms for dispute settlement as envisaged in this plan is the proposed establishment of ‘Grievance Settlement Authorities’ to resolve disputes between individual workers and their employers. In order to address the issue for the Need for Individual Grievance Settlement further, it must be noted that there are two types of Industrial Disputes in particular, the first being interest disputes and the second being rights disputes. [14]

Interest disputes are mostly with regard to determination of a revised wage level and other conditions of employment.

Rights disputes however relate to the interpretation and application of existing standards of employment and usually involve an individual worker or group of workers.

As regards rights dispute constitutes a claim wherein it is contested that the workmen have not been subjected to the terms in accordance with the rules of employment and individual contracts of employment. Such disputes are also described as grievance disputes. The term grievances as understood by want of such disputes is implied to be within the ambit of any dispute regarding retrenchment ,dismissal, payment of wages, working time, overtime, demotion , promotion, transfer, seniority, job classification, work rules and fulfillment of obligation relating to safety and health laid down in an agreement. The definition of Industrial Dispute as given in the Act has a wide coverage. [15] All disputes relating to employment or non- employment, or the terms of employment or with the condition of labour are contained within the definition envisaged in the Act.

Settlement of disputes can be understood to mean an agreement which is arrived at in the course of conciliation proceedings and includes a written agreement between employer and workmen arrived at otherwise than in course conciliation proceedings where such agreement has been signed by the parties there to in such manner as may be prescribed and a copy thereof has been sent to the officer authorized in this behalf by the appropriate government and the conciliation officer. [16]

The definition envisages two categories of settlement.

1. Settlement arrived at in the course of conciliation and
2. Settlement arrived at privately or otherwise than in the course of conciliation.

GRIEVANCE SETTLEMENT: EVOLUTION AND AMBIT

The Industrial Disputes Act was enacted with the objective of ensuring a swift and effective settlement procedure for industrial disputes. [17] As had been Stated by Justice Krishna Iyer, the notion of a welfare state could be considered to mean an end to the exploitation of workers and the inception of peace and harmony in the industrial growth of the state.16 The primary function of the Industrial Disputes Act as contained in a number of cases at its early stages was to facilitate the idea of ‘collective bargaining’. [18] Collective bargaining can be defined to be the act by way of which employees organize collectively and bargain with employers regarding certain rights and liabilities within the employer employee relationship. It is thus the coming together of workers to negotiate their employment and other related matters. [19] It must also be seen that Section 2 (k) of the Industrial Disputes Act, 1947 [20] makes no reference to individual employees but restricts itself only to ‘workmen’ a such. Thus it still remains unclear whether the nature of disputes as envisaged could involve individual grievances under the Industrial Disputes Act, 1947. In Ruston and Hornsby v. TB Kada [21] , the Court held that even still disputes concerning individuals could be referred if they were dismissed from their employment or their services terminated. However, it is settled that no mode of grievance redressal and settlement existed under the Industrial Disputes Act, 1947.

It was only in 1965 that Section 2-A was introduced to the Act that stated that when an employer is discharged, dismissed or his services are otherwise terminated any dispute or discontentment between that workman and his employer shall be deemed to be an industrial dispute in spite of the fact that no other workman nor any union of workmen is a party to the dispute. [22] This Section implies that an individual’s grievance not related to a dismissal or discharge will not constitute an industrial dispute. For example, a worker’s grievance that his seniority was overlooked at the time of a promotion decision in comparison to one of his coworkers will not constitute an industrial dispute, but may be redressed through a grievance redressal mechanism setup within the establishment [22]. Paul Lansing and Sarosh Kuruvilla are of the opinion [23] that including selective individual disputes as industrial disputes protects the individual worker from being victimized and losing his source of livelihood in the process, especially where he was not a member of the union. [24] The first instance however of a legal mechanism of grievance settlement can be traced back to the Industrial Employment (Standing Orders) Act of 1946 [25] that envisaged for the settlement of individual grievances that any employee may have in the industry. With this Act, the right and privilege of the employees of knowing their conditions of work and effectively and individually demanding for them had become the accepted law of the land. [26] However, according to SB Sinha J., the Act did not receive enough attention and a lax in its enforcement rendered it ineffective. [27] It has to be noted thus that the Industrial Disputes Act has no mechanism for grievance redressal and settlement even though the International Labour Organisation Conventions have made it mandatory that such provisions be made in order to ensure efficiency in the industry facilitate an efficacious work environment.

The subsequent stage of legal development was made in 1982 when an amendment was proposed to the Industrial Disputes Act, 1947 to include a mechanism for grievance settlement. As a result of the proposal, Section 9-C was added to the Act in order to create a procedure of reference of certain industrial disputes to grievance authorities. [28] This provision however has not yet been notified and is thus not enforceable despite being passed for over 25 years.

The main features of this procedure are:

• It is compulsory for industrial establishment having more than 50 workmen to have a Grievance settlement authority.
• The dispute must be referred in a manner as may be prescribed.These bodies are made up of representatives of workers and employers.
• No reference can be made under the Act to Boards of Concilliation, LabourCourts or Industrial Tribunals, unless the dispute has first been the subject of a decision of a Grievance Settlement Authority.

GRIEVANCES: THE NEED FOR INDIVIDUAL REDRESSAL MECHANISMS

In 2002, the Second National Labour Commission31 submitted its report to the Indian Government and was of the opinion that as regards grievance redressal, it is crucial to note that after a period of tenty years, the issue again came to the forefront in spite of the Commission having strongly suggested that the setting up of a Grievance settlement authority is essential for the purposes of resolving the issue. As per the report of the Commission32, every establishment to which the general law of employment applies which includes all establishments with twenty or more workers, a Grievance Redressal Committee consisting of an equal number of workers and employers not exceeding ten members or lesser than two members must be constituted depending on the employment size of the establishment.

It was prescribed by the commission that one member of the committee should be designated as the Chairman and another member as the Vice Chairman and a system must be enforced whereby one of the two is from the management, and the other is a representative chosen unanimously by the employees. The Commission suggested that the Grievance Redressal Committee shall be the body to which all grievances of a worker in respect of his employment, including his non employment will be referred to for the purpose of being resolved within a limited period of time. [29] In the instance of the aggrieved worker not being satisfied with the decision of the committee, such employee shall be free to seek resolution through arbitration of the dispute by an arbitrator, or seek adjudication of the dispute by the labour court. The decision of the labour court or arbitrator however it was recommended by the Commission would be final in the matter. The Commission opined that with regard to matters pertaining to individual workers in relation to disputes involving termination of employment or transfer or any other matter should be resolved by recourse to the grievance redressal committee and then only to other dispute settlement mechanisms like Arbitration, Conciliation and the Labour Courts. [30]

CONCLUSION

It is evident as has been seen through the course of this project that the Indian Courts are increasingly recognizing the role of the individual employee within the ambit of labour disputes. This is an obvious and apparent digression from the traditional form of dispute resolution wherein procedures of the likes of collective bargaining were employed and the interests of individual employees weren’t emphasized and is an apparent move towards furthering the notions of social justice and social equity as have been enshrined in the Constitution of India and The Labour Legislations.37 It is imperative however that for these ideals to be truly empowered and enforceable, Section 9-C of the Industrial Disputes Act, 1947 essentially be brought into force. This would not only ensure judicial sanction but also provide statutory empowerment to the rights of the individuals tfor the purpose pf bringing their disputes to a forum with the objective of having them resolved.37 The Central and State Governments as well as various organizations under them have set up grievance redressal mechanisms to look into the complaints of citizens. Besides, there are other institutional mechanisms like the CVC, and the Lokayuktas which have the mandate to look into the complaints of corruption and abuse of office by public servants. Many organizations, for example, the Reserve Bank of India, have set up Ombudsman to look into grievances. Thus, the grievance redressal mechanism is an integral part of any governance system. Today, with increased awareness levels, the aspirations of individuals have increased as have their demand for prompt and effective resolution of their grievances.The traditional Grievance Redressal System is mechanical reactive and formal. Grievances however are human problems with lot of emotions and sentiments attached with them and thus require informal, proactive procedure of resolution in order to be effective.