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Mainstream, VOL XLIX, No 1, December 25, 2010 (Annual 2010)

Migration, Protection and Law

Friday 31 December 2010, by Lakshmidhar Mishra

Every law is the product of a particular point of time and carries with it the political and economic ethos obtaining at that point of time. Enacted with good intentions, it falls into disuse and eventually becomes a dead letter on account of sweeping changes in the social, economic and political milieu on the one hand and rapid decline over a period of time in the positive and proactive ethos which had given birth to the legislative framework at a particular point of time. It is precisely on account of this reason that amendments to the law, howsoever well thought of, become a patchwork which does not help in achieving the desired laudable objective with which the law was enacted.

I have to say all this with a lot of anguish in the context of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act. This is also an irony as the legislative framework was the product of collective wisdom of a Compact Committee which was chaired by no less a person than Shri Debabrata Bandyopadhyay (affectionately known to friends and admirers as Debuda) who is reputed all over the country for his sterling integrity and character, his empathy and sensitivity to the poor, deprived and disadvantaged, and his dedication and commitment to social action.

Like every social legislation Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act had certain social and economic compulsions as its backdrop. My own home State, Orissa, provided this compulsion. In Orissa, as is well-known, dadan labour is recruited from various parts of the State through agents called Sardars, Khatadars or Jamadars for work outside the State in hydroelectric projects, thermal stations, brick kilns, stone quarries, building and construction operations, salt manufacturing and ship breaking operations. Apart from payment of advance, a lot of hopes, promises and allurements of a Disneyland with better jobs, better wages and better quality of life are made to the simple and guileless folk who are recruited. These promises are never kept and no sooner the workmen arrive at the destination point than they are thrown to the bottomless pit of exploitation which reminds one of the prophetic words of Vishwakabi Rabindranath Tagore in ‘Ebar Phirao More’:

I look before me a dark world

A deep dark world

Extremely poor, tiny, empty and fragmented

A world caged and cabined

By (narrow and artificial) walls.

The law, which was passed by both Houses of Parliament in March 1979 and which received the assent of the President on June 11, 1979, was not intended to arrest or prevent or minimise the incidence of migration. It was ameliorative and anti-exploitative in character meant to compensate the dislocation of home and family life and alleviate the misery and suffering of the inter-State migrant workers in the following manner:

• registration of all principal employers and licensing of all contractors employing five or more migrant workmen;

• issue of a pass book to every inter-State migrant workman indicating the name and place of the establishment where the workman is employed, the period of employment, the proposed rates and mode of payment of wages and the return fare payable to the workman on expiry of the period of employment or any other contingencies such as resignation or the termination of his employment before the expiry of such period;

• payment of equal wages to inter-State migrant workmen performing the same or similar kind of work in the establishment along with local labourers, but in any case, not less than the minimum wages fixed under the Minimum Wages Act, 1948 for that kind of work;

• payment of displacement allowance which is equivalent to 50 per cent of the monthly wages payable to the inter-State migrant workmen or Rs 75.00 whichever is higher. It shall not be refundable and shall be in addition to wages or other dues payable to the workman;

• the journey allowance for a sum not less than the fare from the place of residence of the workman in his State to the place of work in another State including payment of wages during the period of his journey, as if he were on duty;

• suitable residential accommodation to the workmen during the period of their employment;

• prescribed medical facilities to the workmen including hospitalisation free of charge;

• protective clothing to the workmen in cold climate as may be prescribed;

• suitable conditions of work considering that the workmen have migrated to another State;

• submission of report to the specified authorities of both the States and also intimation to the kins of the workmen in case of any fatal accident or serious body injuries.

It was hoped that the law over a period of time would bring relief and succour as also deliverance to lakhs of dadan labourers from the vice like grip of Sardars, Khatadars and Jamadars.

More than 30 years after the law was passed and has been on the Statute Book that hope has been sadly belied as would be evident from the following:

• migration from Orissa to other States continues unabated;

• this is not voluntary or skill related migration but distress migration caused on account of compulsions of poverty, hunger, starvation and urge for a sheer biological survival;

• with migration the misery and suffering of a large number of migrant workers have increased manifold almost to a point of no deliverance.

• The law remains, as the late K.V. Raghunath Reddy used to say about the Bonded Labour System (Abolition) Act, a dead letter due to the following reasons:

-  neither recruiting agents obtain the licence at the time of recruitment nor the principal employer obtains the registration certificate even though they are fully aware that recruitment of migrant workmen without such a licence or registration certificate is totally illegal;

-  recruitment takes place rather clandestinely or surreptitiously past dead of night when the whole village will be fast asleep;

-  nobody will have any clue as to where these people have gone and who has taken them;

-  even though it is not voluntary migration, the simple and guileless people will all along be prompted by their recruiting hawks to say if confronted by anybody else, ‘we are going out of our own accord’;

-  neither will journey allowance, displacement allowance and wages during the journey period be paid nor will residential accommodation of the prescribed standard nor health and medical clothing be made available;

-  working hours are unduly long without provision of any spread over;

-  the irreducible barest minimum entitlements, that is, minimum wage, weekly off, and OT wages which are non-negotiable are not complied with;

-  accidents at the worksite will not be reported to the Commissioner, Employees’ Compensation within a week after the accident as required u/s 10 B of Employees Compensation Act, 1923 nor will the workmen’s compensation ever
be voluntarily deposited in the event of accidents causing injury resulting in death or disablement;

-  inter-State migrant workmen, crawling like animals into hovels where they have to put up, are not treated as human beings with dignity, decency, equality and freedom to which they are fully entitled as human beings;

-  they lead an animal like existence bereft of the right to privacy and barest minimum necessities with threats being constantly held out to them by the musclemen guarding them to the following effect, ‘you cannot leave the worksite until and unless advances taken by you have been fully liquidated’;

-  the documentary evidence in support of the advance always remains with the middlemen who act as recruiting agents;

-  the inter-State migrant workmen who are non-literate and non-numerate have no clue as to how much advance was paid to them, how much has been adjusted with wages and how much is outstanding against them;

-  they work hard, day and night, along with their wives and children; they have all the time for the master and no time for themselves; leisure and recreation are unknown to them; the logic of usury eludes them; they get reduced to a commodity which the Philadelphia Declaration had decried with all the force at its command; they became a thing, ‘an exile of the civilisation’;

-  to make matters worse, the destination State machinery will always say, ‘they have come of their own, they will go back of their own, we have nothing to do with them’;

-  such an impersonal averment comes from the callous and insensitive elements of the society notwithstanding the fact that these hapless women, men and children contribute through their ‘blood, sweat and tears’ to the prosperity of the enterprise and GDP rate of growth of the State and the nation;

-  theirs is a labour of love, unseen and unheard, unrecognised, unaccounted for and unpaid, the petals of childhood wither away before blossoming to the flowers of youth and manhood; old age dawns with bundles of worries, anxieties and tension with nothing to clutch and fall back upon.

II

Why and how of migration

• Migration, regional imbalance and dispersed economic development are interlinked in as much regional disparity and imbalance in economic development deriving their origin from a colonial and imperial past.

• The colonial rulers were interested in merely ensuring regular supply of raw materials to their own industries outside India.

• They concentrated on development of those regions from where raw materials could be easily exported like a port town.

• This led to development of the port towns of Mumbai, Kolkata and Chennai.

• These port towns became the fulcrum of economic development of Maharashtra, Gujarat (which was part of Bombay State till 1960), West Bengal and Tamil Nadu.

• Development of certain areas led to the neglect of certain other areas and regions in the country.

• After independence, the policy-makers and administrators could do precious little to undo the wrong of regional disparity or imbalance already in place as a result of centuries of lopsided policy.

• The country after independence and at a nascent stage of its economic development had limited capital, limited skilled manpower, limited entrepreneurship and limited banking facility; the menace of regional disparity or imbalance could not, therefore, be effectively countered.

• Our planners and policy-formulators thought in their wisdom that if scarce resources were to be equally or equitably distributed among all the regions of the country, it may act as an antidote to economic growth of the country.

• New development projects were, therefore, started in already developed regions and resources continued to be poured to regions which were already resource-rich fuelling regional disparity further.

• The Green Revolution in the mid-sixties opened up new vistas of agricultural opportunity and prosperity in Punjab, Haryana, Western UP—all of them being well-endowed regions in terms of fertility of the soil, irrigation facility, communication and transport facility —a balanced combination of physical and social infrastructure.

• Once development started and received a boost in certain parts of the country more due to historical legacy than anything else, there was a constant stream of the flow of labour—unskilled and skilled alike, professionals and entrepreneurs from less endowed to well-endowed and developed regions.

• Labour migrated to those developed regions in expectations of better opportunities of employment, better wages, better quality of life. As Gunnar Myrdal has observed in Asian Drama, ‘while the rich regions grew richer, backward regions continued remaining poor.’

III

What is social protection?

• Social protection emerges as one of the tools for alleviating the distress of those who for no fault of theirs have to migrate from the well endowed to the less endowed regions for sheer biological survival.

• Social protection is care, support and attention bestowed by the state on the individual as an agent of the society. It is the fundamental duty of the state to protect and safeguard life and limb, physical and moral integrity, dignity and decency of all its citizens. The totality of that care, support and attention is the theme of social protection.

Why social protection?

• Social protection is a multi-faceted concept.

• It encompasses creation of avenues of employment which are freely chosen, which are stable and durable (Convention No. 122 of 1964 which India has ratified).

• It encompasses skills and abilities which can be applied productively. It encompasses a process of continuous skill formation and skill upgradation.

• It envisages a safe, clean and congenial work environment with provision of all welfare facilities and amenities.

• It envisages a fair and reasonable price for labour and price for the products of labour.

• It envisages payment of remuneration to labour in time without any deduction towards payment of commission to the middlemen which, according to the Supreme Court of India, is an infringement of Article 23 of the Constitution (Asiad workers’ case, WP No. 8143 of 1981, date of judgement 18.9.82).

• It envisages the exercise of the fundamental right to freedom of association and defence of one’s right through organisation and collective bargaining.

• It envisages freedom from forced labour, freedom from child labour, freedom from discrimination in employment and occupation, freedom from trafficking, violence, intimidation, tyranny and oppression.

If that be so, what are the implications of non-protection for migrant workers?

• Non-protection will have serious repercussions on the health, safety and well-being of migrant workers as also on their morale and motivation. This is particularly relevant as everything at the destination point will appear to be alien to the migrant workers—geography, topography, work environment, language, customs, court procedures—and such alienation in the absence of any countervailing social and economic protection is bound to be further compounded.

• Non-protection would lead to inferior conditions of work, conceal the true nature of employment relationship and bring down the level of wages/income. Fall in wages would result in reduced consumption which would have a recessionary effect on the economy. Low income would lead to poverty, poverty would lead to child labour and child labour to crippling of human resource.

• Inferior conditions of work would be charac-terised by long hours without spread over, absence of weekly off, unclean, unhygienic and unsafe work environment—all of which would have a cumulative demotivating and demoralising effect on the health and psyche of workers the totality of which is known as indecent work.

• No enterprise can afford to maintain a high level of production and productivity under indecent conditions.

IV

What type of Security or Protection is Envisaged for Migrant Workmen?

Migration involves dislocation of home and family life. A migrant worker, who is generally landless and assetless, incurs loan/debt at the originating point from the local moneylender to meet ceremonial and consumption needs. This loan/debt is liquidated with the help of advances received from the recruiting agents. With liquidation of loan/debt of the local money lender one form of insecurity ends but a new form of insecurity begins. The new form of insecurity is inherent at the destination point of workplace due to difference in agro-climatic and weather conditions, difference in language, lack of familiarisation with administrative and legal procedures. It gets compounded due to lack of residential accommodation, lack of access to essential commodities through a fair price shop under the public distribution system due to want of a ration card, children being victims of educational deprivation, women being victims of sexual harassment at the workplace and lack of social communication. The threat of abusive behaviour, wrongful confinement and forced labour also looms large all the time before the migrant worker.

The relevance of multiple forms of security or protection for a migrant worker placed in such an unenviable situation is undisputed. These are as under:

I. Labour Market Security: envisages access to better employment opportunities which are adequate, stable and durable as opposed to casual, sporadic and intermittent.

II. Employment Security: envisages protection against arbitrary and whimsical discharge, dismissal and termination of employment which might be effected in violation of or departure from the standing address certified under the Industrial Employment (Standing Orders) Act.

III. Work Security envisages protection at the workplace against

-  accidents;

-  occupational diseases;

-  sickness.

Such a protection can be extended through

-  health and safely regulations;

-  weekly off;

-  spread over;

-  non-employment of children and women at night and in certain occupations and processes which are considered injurious to their life and limb due to their hazardous character.

IV. Job Security envisages

-  adequate facilities, opportunities and incentives for advancement in an empolyee’s service career;

-  removal of discrimination (caste related, gender related, faith/belief related, ideology related, social origin related);

-  gradual removal of distinction between unskilled, semi-skilled, skilled and highly skilled.

V. Income Security ensivages

-  institutional mechanism for fixation, review, revision and enforcement of minimum wage under the MW Act;

-  indexation of wage (to protect the purchasing power of the currency against rising prices and inflation);

-  a policy of progressive (as opposed to regressive) taxation so that the rich do not get richer and poor do not get poorer;

-  a scheme of comprehensive social security including pension.

VI. Skill Reproduction Security envisages

-  creating conditions which will be conducive to skill formation and skill upgradation;

-  on the job training and retraining programme to enable employees to retain skills;

-  to go on constantly refining and sharpening skills to make them coterminus with sustainable employment.

Eventually the picture which emerges is one of correlation between skills, income, contribution, scale of benefits through a social security fund, production and productivity which may be explained as under:

-  higher the skills, higher the earning;

-  higher the earning, higher the rate of contribution;

-  higher the rate of contribution, larger the corpus;

-  larger the corpus, better will be the prospects of investment and rate of dividend;

-  better the return on investment, higher will be the scale of benefits;

-  better the scale of benefits, happier, healthier, more stable, contented and motivated will be the workforce;

-  more contented and motivated the workforce, higher will be the production and productivity and better will be the GDP rate of growth.

Conversely
-  lower the skill, lower the earning;

-  lower the earning, lower will be the rate of contribution;

-  lower the rate of contribution, smaller will be corpus;

-  smaller the corpus, not too bright will be prospects of investment and return on investment;

-  lower the return on investment, lower will be the scale of benefits;

-  lower the scale of benefits, less motivated will be the workforce with repercussions on production and productivity.

V

Central laws as are applicable to migrant workers —basic principles, problems of enforcement and remedies

The Compact Committee, which was set up in February 1977 on the recommendation of the 28th Session of the Labour Ministers’ Conference on October 26, 1976 under the chairmanship of Shri Debabrata Bandyopadhyay, IAS, then the Joint Secretary in the Ministry of Labour, had examined at length the applicability of all existing legislations to inter-State migrant workmen. It had felt that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, even after necessary amendments, would not adequately take care of the variety of malpractices indulged in by the contractors/Sardars/Khatadars and would not take care of the peculiar and adverse circumstances in which they work and live. It had perceived (a) the need for effective protection against their exploitation, (b) some administrative and legislative arrangements both in the State from where they are recruited as also in the State where they are engaged for work are necessary to secure such protection. It had, therefore, recommended the enactment of a separate Central legislation to regulate the terms of employment and conditions of service of inter-State migrant workmen. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act (Act 30 of 1979) came on the Statute Book as a result of the recommendation of the Compact Committee. Till date it continues to be the principal law for governing the conditions of service of inter-State migrant workmen. This notwithstanding, there are a number of central laws which are also applicable to migrant workers such as:

-  Payment of Wages Act, 1936;

-  Minimum Wages Act, 1948;

-  Bonded Labour System (Abolition) Act, 1976;

-  Child Labour (Prohibition and Regulation) Act, 1986;

-  EPF and MP Act, 1952;

-  ESI Act, 1978;

-  Mines Act, 1952;

-  Factories Act, 1948;

-  Employees’ Gratuity Act, 1972;

-  Payment of Bonus Act, 1965;

-  Maternity Benefit Act, 1961.

It is necessary and desirable, therefore, to have a proper understanding of the applicability and basic principles behind these laws vis-à-vis migrant workers so that problems which are faced by these workers could be addressed. A selective approach is being adopted for this purpose and the basic principles underlying two important legislations, that is, the PW Act, 1936 and MW Act, 1948 vis a vis their application on the ground are being analysed below to draw some worthwhile conclusion.

(A) Payment of Wages Act, 1963

• It is applicable to
-  persons employed in any factory;

-  persons employed otherwise than in any factory;

-  persons employed directly or through a sub-contractor.

• Appropriate government may extend the provisions of the law to any class of persons employed in any establishment or class of establishments specified by the appropriate government.

• Wages are payable to an employed person in respect of a wage period if such wages for that wage period do not exceed Rs 6500 or

• Such other higher sum which on the basis of figures of the Consumer Expenditure Survey published by the NSSO, the Central Government may after every five years specify.

• The Central Government on that basis has specified the wages on August 8, 2007 as Rs 10,000.

Basic Principles:

• Every employer responsible for payment of wages shall fix periods in respect of which such wages shall be payable.

• Wages shall be paid before the expiry of the seventh day succeeding the month for which wages are payable in an establishment where 1000 persons are employed.

• Wages shall be paid before the expiry of the 10th day in any other factory.

• Wages shall be paid before the expiry of the second working day from the day on which the employment is terminated.

• Wages are to be paid by cheque or by crediting in the bank account of the employee, if any.

• Wages of an employee shall be paid without deduction of any kind except those authorised in subsection 2 of section 7 of the Act such as:

-  fine;

-  absence from duty;

-  deductions for damage or loss of goods;

-  deductions for house accommodation;

-  deductions for recovery of advances;

-  deductions for recovery of loans;

-  deduction for such amenities and services provided by the employer.

There are checks and safeguards laid down in section 8 for imposition of fine such as:

-  such acts and omissions on the part of an employed person;

-  such acts and omissions shall be exhibited in the prescribed manner on the premises in which the employment is carried on;

-  no fine shall be imposed on any employed person until he has been given an opportunity of showing cause against the fine or otherwise than in accordance with such procedure as may be prescribed;

-  the total amount of fine shall not exceed three per cent of the wages;

-  no fine shall be imposed on any employed person who is below 15 years;

-  no fine imposed shall be recovered after expiry of 90 days from the day on which it was imposed;

-  claims arising out of deductions from wages on delay in payment of wages can be filed u/s 15 of the PW Act;

-  property of the employer or other person responsible for payment of wages can be attached in the extent of likely evasion of any amount payable u/s 17 A.

(B) Minimum Wages Act, 1948

• Section 4 of the MW Act defines minimum rate of wages to consist of

-  a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate government may direct to accord as nearly as possible with the variation in the cost of living index number applicable to such workers; or

-  a basic rate of wages with or without the cost of living allowance and the cash value of concessions in respect of supplies of essential commodities at concessional rates, where so authorised; or

-  an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of concessions; if any.

• The cost of living allowance, the cash value of good concessions etc. are to be computed by competent authority at such intervals and in accordance with such directions as may be specified.
• The minimum wage is to be fixed in respect of a scheduled employment only.
• An employment in which a minimum number of 1000 employees has been engaged in the whole State qualifies to be notified as a scheduled employment by the appropriate government.

• The minimum wage rate can be fixed either by the Committee method or by direct notification method;

• The minimum wage rate is to be reviewed and revised once every five years.

• Until the minimum wage is so reviewed and revised, the minimum wage rates which have been notified and which have remained in force immediately before the expiry of the said period of five years shall continue to remain in force. (Example: The Government of UP fixed a piece rate of Rs 43.00 for moulding 1000 bricks in August 1990. It was reviewed and revised to Rs 204.00 in 2006 (16 years after the initial fixation) but was not given effect to till date on the ground that the order is being reviewed. In such a situation, legally speaking, the piece rate wage of Rs 43.00 for moulding 1000 bricks will be in vogue which is substantially lower than the market rate of wage.

• Different minimum wage rates may be fixed for

-  different scheduled employments;

-  different classes of work in the same scheduled employment;

-  different minimum wage rates for adults, adolescents, children and apprentices.

• The minimum wage may also be fixed by the hour, by the day, by the month or by such other larger wage period.

The MW Act suffers from a number of infirmities; there are serious problems of implementation/enforcement too. The proviso to section 3 of the Act (the UP example given above illustrates this) is totally antipodal to the interest of employees in general and workers in the unorganised/subsistence sector in particular. If surveys are not conducted it is not possible to find out if 1000 or more employees are working in a particular sector of employment and consequently that employment cannot be notified as a scheduled employment. Due to acute shortage of officers and other constraints in Labour and Employment Departments under the State/UTs, such surveys are not being conducted at period intervals. This is how the number of scheduled employments varies from State to State. In Orissa it may be 80+, in AP it is 71, in Gujarat it is 51 while in Haryana it is 47.

The Committee method of fixation of the minimum wage is time consuming as employers’ and employees’ representatives are often in a situation of conflicting and irreconcilable loyalties and find it hard to come to a consensus. It is precisely for this reason that the procedure for fixation, review and revision of minimum wage is a long drawn out process; some of the States have not been able to review and revise the minimum wage even after expiry of five years.

The minimum wage is the rock bottom irreducible barest minimum which is statutorily required to be paid without any deduction. Deduction from the minimum wage is more a matter of rule than an exception. This is what made Justice Shri P.N. Bhagwati observe with regret while disposing off W.P. No. 8143 of 1981 on September 18, 1982: ‘When a person provides labour or service to another for a remuneration which is less than the notified minimum wage, the labour or service provided by him falls within the scope and ambit of forced labour under Article 23…… In the present case, workers did not get the minimum wage of Rs 9.25 per dy as Re 1 per worker per day was deducted by the Jamadars (middlemen) from the wages payable to the workers employed by contractors for Asiad projects. The same would therefore, amount to an infringement of Article 23 of the Constitution.’

As a socio-legal investigating Commissioner of the Hon’ble Supreme Court I have observed that the practice of deduction from the minimum wage for payment of commission to middlemen is an established practice in most of the brick kilns and stone quarries. Even the notifications issued by the State governments of UP and Haryana fixing the minimum wage (piece rate) for moulders in brick kilns, two rates have been indicated—one with commission and another without commission—a practice which is clearly violative of the spirit of the above judgement of the Apex Court.

Besides, what the law gives with one hand is taken away by the other hand. Section 13(1) of the MW Act is one such example.

The principle of fixing hours of work which shall constitute a normal working day stands violated by section 13 (2) of the Act which says, ‘employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned’.

• Take, for example, operations in a brick klin.

• A number of operations are required to be carried out before the bricks are made, baked and transported. These are:

-  preparation of pits;

-  digging the raw earth;

-  making the dough by continuously sprinking water on the earth;

-  shaping the rounds of mud or clay into bricks with the help of wooden mould provided by the brick kiln owner.

• The moulders are paid per thousand bricks which includes all the processes mentioned above.

• Women and children carry the bricks to be spread in the sun. They have to turn the bricks on all sides for even drying. They are not paid for these operations. The process of brick moulding (called in Hindi as Jod) itself will be incomplete unless a woman joins a man to put the raw earth in the frame and take it out.

• This contribution of women and children is not even recognised or documented; they are totally unaccounted for.

Section 13 (b) provides for a weekly day of rest. Section 13 (c) provides for payment on the day of rest at a rate not less than the OT wage rate, that is, double the minimum wage rate fixed for that scheduled employment. This is invariably denied to the inter-state migrant workmen. During my visit to several worksites of the CWG 2010 in February-March 2010 as a member of the team constituted by the Hon’ble High Court of Delhi it was observed that neither is there a weekly day of rest nor is payment made to the workmen if they were made to work on the weekly day of rest.

Section 14 deals with OT, occasion for performing OT and OT rate. Nowhere is OT being paid at double the rate of the ordinary wage as required under Rule 25 of the MW Central Rules. Rule 24 lays down the number of hours which shall constitute the normal working day such as in case of adults—nine hours, in case of a child—four-and-a-half hours. In actual practice, however, both adults and children are made to work much longer and not to speak of OT wage, what they receive is a pittance.

There is yet another important principle which is honoured in the breach. It is the responsibility of the employer to provide jobs or opportunities for work. It is the corresponding responsibility and obligation of the workmen to cooperate. If the employer fails to provide that opportunity when the workman has turned up for work and is willing to work, the employer cannot deny the workman the wage for a full normal working day.

What, however, happens on the ground is quite contrary to the above principle.

• Fixing a claim and procedure for adjudication of the claim is yet another redeeming feature of the MW Act.

• Claims can be fixed in the event of

-  payment of less than notified minimum rate of wage;

-  payment of remuneration for the weekly day of rest;

-  payment of wage at OT rate for work on the day of rest;

-  payment of OT wage.

• A claim application shall be presented within six months from the date on which the minimum wage or any other amount became payable.

• There is no corresponding obligation on the part of the claim adjudicating authority to dispose off the claim within the same period of six months.

• In actual practice claim applications linger for a much longer period.

• Even when adjudicated and a direction is issued, it is ordinarily not complied with.

• In that eventuality one has to take recourse to the provisions of Public Demands Recovery Act which may take yet another couple of years defeating the laudable intentions of the framer of the law.

(C) Bonded Labour System (Abolition) Act, 1976

This is one of the most progressive legislations enacted in the post-independence era which owes a lot to the vision and insight of three architects in the Ministry of Labour—late K.V. Raghunath Reddy, former Union Labour Minister, Shri T.S. Shankaran, IAS (Retd), former Additional Secretary, and Shri D. Bandyopadhyay, IAS (Retd), former Joint Secretary. It is progressive on a number of counts such as (a) it extinguishes in one stroke generations of bonded debt, (b) it vests the powers of a judicial magistrate, Ist or IInd class, in an executive magistrate for trial of all offences under the law by adoption of a summary procedure, and (c) it confers a number of benefits and concessions on the freed bonded labourer. Through a series of judgements and directions issued thereunder, the Supreme Court of India has given a very broad, liberal and expansive interpretation of the law without altering the law. The Act was amended in April 1985 by addition of an explanation bringing contract labour and inter-State migrant labour within its purview. According to this explanation, if any workman being contract labour or any inter-State migrant workman is required to render labour or service in circumstances of the nature mentioned in sub-clause (i) of section 2 (g) or is subjected to any of the disabilities referred to sub-clause (2) to (4) of section 2 (g), he/she shall come within the definition of the bonded labour system. In the case of inter-State migrant workmen, the possibility of their coming within the purview of the bonded labour system is all the more on account of the following reasons:

-  inter-State migrant workmen are recruited from one part to another part of the territory of India on payment of advances;

-  the documentary evidence in support of such advance always remains with the recruiting agents;

-  the inter-State migrant workmen do not have any clue on the terms and conditions of repayment of such advance, the manner of its adjustment with the wages payable and the consequences of non-liquidation of advance;

-  it is only after arrival at the worksite at the destination point that they will be told that they cannot leave the worksite until and unless the advance has been fully liquidated;

-  the advance does not ever get liquidated for the simple reason that (a) workmen continue to incur more advances on their arrival at the worksite to meet the ceremonial and consumption needs for self and family members, (b) the accounts relating to the earlier as well subsequent advances are always kept with the recruiting agents or middlemen, (c) the procedure for adjustment of advances with the wages payable is one one-sided, arbitrary and often to the disadvantage of the workmen.

It is precisely for this reason that most of the inter-State migrant workmen recruited by recriting agents on receipt of advances would come within the purview of the bonded labour system defined in section 2 (g) of the Bonded Labour System (Abolition) Act.

This notwithstanding, when complaints are received by the National Human Rights Commission and forwarded to the DMs of the districts for conducting an enquiry, it is invariably reported that (a) the workman is not an inter-State migrant workman, and even if he/she is an inter-State migrant workman he/she does not come within the purview of S (2) (g) of the Bonded Labour System (Abolition) Act on account of the fact that (a) he/she has come to the worksite entirely on his/her own; (b) there is no element of advance; and (c) the conditions of work are just, fair and equitable and there is nothing to complain about. Such a stand is unacceptable inasmuch as (a) no inter-State migrant workman would ever be willing to come to work at the destination point without an element of advance, (b) the conditions of work are invariably adverse and to the disadvantage of the workman, and (c) invariably all the ingredients of debt bondage as defined in S (2) (g) are present in cases of inter-State migrant workmen. There have been several instances where DMs, initially reluctant to issue a release certificate, have been compelled by the NHRC after due consideration of the facts and circumstances of the case to issue such certificates which is a prelude to rehabilitation of the freed bonded labourers. The stand of the destination State and DM of the district in the destination State concerned has invariably been found to be detrimental to the interests of these workmen even though it is well known that they and their family members work and live under extremely adverse circumstances. They have neither the strength and courage to demand their basic minimum entitlements under the law nor the capacity to bargain for something better either individually or collectively.

Conclusion

THERE is nothing new or radical or innovative in all that has been said in the above paragraphs. The sole intention of emphasising or reiterating or even repeating the oft-repeated is to hammer hard certain basic principles which are crucial to the understanding of a particular problem so that truth may eventually emerge out of such understanding. The ultimate truth in our attempt to mitigate the distress of migrant workmen, provide timely relief and succour to them and bring about a qualitative improvement in their working and living conditions lies in a radical change in our attitude and approach to the social action issues, in the value system or rather restoration of the old value system built on social justice and equity tempered by a spirit of kindliness which Vishwakabi Rabindranath Tagore had so lucidly and forcefully, and yet lyrically, put in his immortal work, Geetanjali or song offerings:

Leave this chanting and singing and telling of beads! Whom dost thou worship in the lonely dark corner of a temple with doors all shut? Open thine eyes and see thy God is not before thee. He is there where the tiller is tilling the hard ground and the path-maker is breaking the stones. He is with them in sun and shower and his garment is covered with dust. Put off thy holy mantle and even like him come down on the dusty soil.

Undoubtedly the answer to all our aberrations, our greed and rapacity, our unabashed vanity and ego, our orchestration and pretentiousness and ‘holier than thou’ attitude, our unhesitating compulsion to ‘make hay while the sun shines’ could be found in these soul-stirring lines.

A former Union Labour Secretary, Dr Lakshmidhar Mishra is currently the Special Rapporteur, National Human Rights Commission.

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