Thursday, October 09, 2008

On the CEO being killed in Noida... (a version of this appeared in the New Indian Express)

There was indeed a sense of irony in the way the political establishment went ballistic about the incident in Greater Noida involving the death of Lalit Kishore Chaudhury. The incident, without doubt, was unfortunate. It must not have taken place and such acts as the one that the victimized workers were involved in that day will only add grist to the mill that militant unionism will scuttle India Inc.’s onward march.

A close reading of the sequence of events that fateful day would bring out a few facts; and among them is that the murder was not intentional. In other words, the criminal intent behind the act will be difficult to establish and from what has come out, the unfortunate incident resulting in the death of the CEO of the Indian unit of the Italian MNC was more in the nature of an accident than an act preceded by elaborate planning.

This is not to approve of the incident. But then, one is reminded of a murder, a few years ago, of Shankar Guha Neogi, leader of the mine workers in Dalli Rajhara (near Bhilai) who was shot dead at his residence. Neogi was murdered on September 28, 1991. It was established, at the Sessions court, that the executioner who shot dead Neogi was hired by some small time industrialists including B.R.Jain, who also shot to infamy when entries in his diary revealed hawala transactions and shook the political establishment for a while in 1995-96. And like it happened with the Jain hawala case, the Neogi murder case too could not be sustained for want of legally sustainable evidence.

The point about recalling this now is that such ballistic behaviour and screeching by the media and the political establishment as was witnessed in the wake of Lalit Chaudhury’s death was not seen in the case of Neogi’s. And when the workers in the mines and the ancillary units around the Bhilai Steel Plant organized a protest demonstration demanding justice against Neogi’s killers, the then State Government of Madhya Pradesh had its police to shoot down 11 of those workers in Bhilai.

Neither did the then Union Minister for Labour express concern over the loss of lives. The visual media with so many private channels had not arrived at that time and hence Neogi’s murder and the subsequent killing of 11 workers by the police did not provide an occasion for ``breaking news’’ and the screeching that went on through the day in the various TV channels. Well. It is doubtful as to whether these channels would have treated the Neogi murder with the same concern that they did with that of Chaudhury. These channels, after all, are known to suffer from Schizophrenia.

This, indeed, can be established with ease if one goes into the facts of the case involving the Indian unit of Graziono Transmissioni and its deceased CEO, Lalit K Chaudhury. The unit, as it has been reported, had laid off a section of its workers and the violence on September 22, 2008, was a fallout of the demand by such retrenched workmen demanding reinstatement or compensation thereof.

The law in this matter is settled and clear. Such layoffs are governed by the Industrial Employment (Standing Orders) Act, 1946 read along with Sections 25(c) and 25(f) of the Industrial Disputes Act, 1947. The ambit of these provisions have been settled by various judgments of the different High Courts as well as the Supreme Court.

For instance, where the management decides to layoff a section of its workmen for a particular period of time, such workmen are entitled for a layoff compensation amounting to half the sum of the Basic Salary and Dearness Allowance and this will be applicable for a period of 45 days. In a matter of clarification, the law has been interpreted to confer this right even on badli workers (P.Joseph vs Loyal Textile Mills) and where the layoff persists after 45 days, the workers are entitled for full compensation.

Similarly, it is a well settled case that in the event of retrenchment, such acts have to be preceded by a month’s notice and the retrenchment compensation amounting to 15 days wages (and this includes the Basic Pay plus Dearnes Allowance) for every year of service rendered is a statutory right. This right is conferred upon all kinds of workmen including those on ad-hoc and temporary employment (Umesh Saxena vs Labour Court) as well as badli workers (Sarabhai Chemicals vs Subhash Pandya) and daily rated workers (Workmen vs Municipal Corporation of Delhi) where such workers have put in 240 days of service in a calendar year.

And in a leading case (Mohanlal vs Bharat Electronics Limited) in 1981, the Supreme Court made it clear that any retrenchment without complying with the provisions of Section 25(f) of the Industrial Disputes Act, 1947 will be viod ab initio and lead to continuation of service with full back wages.

The Supreme Court has also clarified that such compensation is not by way of gratis; putting this in so many words in the Pramod Jha vs State of Bihar, as late as in 2003, the apex court held that the underlying object of Section 25(f) is two-fold:

Firstly, a retrenched employee must have one month’s time available at his disposal to search for alternate employment and so either he should be given one month’s notice of the proposed termination or he should be paid wages for the notice period. Secondly, the workman must be paid retrenchment compensation at the time of retrenchment, or before, so that once having been retrenched, there should be no need for him to go to his employer demanding retrenchment compensation and the compensation so paid is not only a reward earned for his previous services rendered to the employer but is also a sustanence to the worker for the period which may be spent in searching for another employment.

The onus of ensuring that all these laws are implemented rests with the officers of the Department of Labour and Employment in the various States as well as the Union Government. In other words, the issue insofar as the Greater Noida incident involving the retrenchment of a section of the workmen in the Indian unit of Italian MNC Graziono Transmissioni ought to have been settled, according to the law, by the Labour Commissioner, through his subordinates in the region. This, obviously, was not done and the workers were left in the lurch.

Well. It is too much to expect a petty officer in the Labour Department in Noida to force the MNC to mend its ways and obey the law of the land. That the mighty Oscar Fernandes, Union Minister for Labour and among those who has his direct access to Sonia Gandhi, could not hold on to his observations on the incident should convince those with a rational mind of the clout these MNCs wield over the nation and its articulate people. And that explains the state of the workmen and their rights against such employers who, incidentally, will not dare do such things in their own land. The workers in Italy or in any other developed nation cannot be retrenched with such ease as they seek to do in India.

And those responsible for this state are none other than the rulers and the apologists of such un-democracy who do not mind the workmen in their own country being treated as disposable napkins and the law of the land is trampled upon by the carpet baggers. Such Schizophrenia will not do the country proud.


Blogger Shweta said...

Posting a reply to your article on ExpressBuzz..'Retrenchment and Relief Money'.....
Compensation according to me should be given to persons who's lawful interests have been compromised with or who have incurred a wrongful loss. When did violent agitations and destroying a company's property as an expression of discontent become lawful? As prescribed by the govt., the min wages of the workers should have been Rs. 3000/-. Workers ar Grazziano were being paid Rs. 8000/-. Where the workers create such indiscipline and try to take law and order in their own hands, management has the right to terminate the services of such roudy workers. Mr. Lalit Kishore Chaudhary never terminated the services of those 100+ workers. Those workers were just locked out. Notices were sent by him to summon them to appear in the meetings on the concerned dates for negotiations. They never turned up. They refused to turn up till all their demands were fulfilled. You think these workers who were not getting salaries from 3 months could sustain themselves without some external aid pouring in?

6:43 PM  
Blogger V. Krishna Ananth said...

Well. Where the workers were paid more than the minimum wages, it is not a licence to terminate their services. I suppose you will agree that wages are not gratis but a share in the profit.

Now, who is Chaudhury to issue notices to them??? As far as I know, that is the job of the conciliation officer and where the conciliation fails, for the labour court or the Industrial Tribunal to settle the dispute and do that according to the law.

You do agree that they were locked out. That the ID Act, 1947 mandates under Chapter V-B that any lockout will have to be only after obtaining clearance from the appropriate authority and where this clearance was not obtained, the lockout is illegal.

The issue here is that Grazianno did not have such clearance to lock out 100 of its workers and the agitation was hence justified. This is NOT TO SAY that the violence and the resultant killing is justified. Isuppose I have made my point clear.

3:23 AM  
Anonymous Ashfaque Ismail said...

I would start with an appreciation for the post. The article written by you is not a big deal for you because of your experience and the profession (s). I got valuable information about the Industrial Employment (Standing Orders) Act 1946 and Industrial Disputes Act 1947 wherein retrenchment or in corporate jargon the "layoffs" cannot be ordered randomly. They require systematic rules to be followed before any such exercise is underatken. I think same can be applied in the case of Naresh Goyal's JetAirways who decided to cut down on airline's staff. The other point that I want to make is about the murders you mentioned. The first point is obviously on a CEO of an Italian MNC. The previous example of a murder you wrote was about some union leader. The point which I want to raise here is about the intention involved in a murder. I think it is really hard for a "prosecution" to prove one's intentions, either wrong or right, when the crime was committed. So if someone kills someone with "intent" and proves that the murder was "accidental" where do we find the prosecution in the whole arraignment? There may be the cases where there existed no actual "intentions" and the persons sent behind bars because of "some" circumstantial evidence going against the accused.
So isn't it true that to find the "intentiono" is hard for the prosecution? It may be the point wherby "prosecution" may practise "persecution"?

2:41 AM  

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