Employment Law And Wretched Functionaries Of The Legal System In India

Abstract

Employment is a term, synonymous to life, dignity and livelihood for many, and regarded as an indispensable component under the core values of the Constitution of India. It is a concept that relates to the most fundamental and inherent rights recognised universally, and cannot be taken away under ordinary circumstances. In this way, employment for an individual becomes a source that allows someone to fully develop and utilise the human qualities, intelligence, talents, and conscience to satisfy physical, spiritual and other needs of life. Simply put, it is that stone upon which an edifice of a building is constructed as it provides human beings a platform to appreciate other rights and avail their benefits. Employment in its habitual sense is thought of an activity, whereby, an employee receives remuneration in form of money from his employer for contributing towards any material requirement the employer had.

However, in true sense, all persons require more from their jobs as opposed to just money and job security. Here, the article talks of social welfare and security benefits that protect and maintain one’s dignity during and after work tenure. A special attention has been bestowed upon certain functionaries in the noble profession of law as numerous employment concerns are being raised presently considering its unprofitable nature and the amount of toiling it demands initially. Through this article, I shall endeavour to explain the rationale behind position of lawyers and advocates’ clerks as they are treated under the prevailing labour and industrial laws. Subsequently, an attempt has been made to discern and highlight the pitiful condition of those vital stakeholders when it comes to enjoyment of social security benefits and remedial options available to them in case a dispute arises with employer. In addition to all, this article touches upon the measures that ‘have been’ and ‘ought to be’ adopted by the Appropriate Government, Judiciary and concerned Bar Councils.

Introduction & Background

It is a matter of common knowledge that ‘Employment Law’ is a broad field of law, regulating the relationship between an employer and employees if work is performed in subordination to the employer. In other words, it is regarded as law for the protection of dependent workers. Employment or simply ‘work to earn livelihood’ in India, is arguably a part of Article 21 of the Constitution of India, but, surely consistent with State’s obligation under Part IV of the Constitution and hence, paving way for enactment of various legislations, rules and regulations for resolving disputes and protecting the interests of the stakeholders.

The origin of labour and laws can be traced back to British Raj and are predominantly workmen oriented because of an obvious reason that the workers form part of the economically weaker section between the two parties involved in any employment contract. Ever since this area of law remains dynamic in terms of enactment of statutes, amendments and development of comprehensive jurisprudence due to certain reasons such as escalating expectations of the employees, the hopes extended by Welfare State, uncertainties caused by tremendous structural developments in industry, the decline of authority, the waning attraction of the work ethics and political activism in the industrial field, all appear to own vie some role.

Generally, employment law is a wider expression that covers labour and industrial law, but, in India, these terms are used interchangeably. However, there still exists a distinction based on the nature of work, establishment and remuneration. Furthermore, the legislations can be broadly classified into two main heads: a) Regulatory, b) Social Welfare or Beneficial. As the very title suggest, the former statute books would supervise the conduct of employer-employee relationship and synchronize the dispute, if any, and the latter piece of legislations would shield the interests and provide benefits, mostly, to the employees.

Current Position of Lawyers as Profession

In view of the aforesaid, let us examine as to who all are entitled to the benefits under the prevailing labour legislations and whether or not the lawyers/advocates discharging an onerous duty come back among the range of such laws. A legislation upon which other industrial statutes rest is The Industrial Disputes Act, 1947. It brings the meaning and scope of the words ‘workman’ and ‘industry’ to the fore. Almost all the other laws import the meaning of the said terms for their respective purpose. Section 2(s) of the Act defines the word workman and includes any person employed to do any manual, skilled, unskilled, operational, technical, clerical or supervisory work. Notably, the Act being a beneficial piece of work is has been left sufficiently open ended so as to allow a wide gamut of persons to be covered by it, enclosed employees used through contractors, temporary workers, etc. Albeit, no straight jacket formula is accessible to figure out who can be a labourer, an expansive number of legal points of reference exist whereby numerous sorts of livelihood have been avoided from the meaning of 'workman' under the Act.

A few judicial precedents can be instructive to analyse the current position of lawyers and other highly skilled professionals under the labour laws. The Supreme Court has flatly control in an exceedingly case that lecturers used by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as “workmen” within the meaning of Section 2(s) of the Act. Imparting of education is in the nature of a mission or a noble vocation as an instructor educates youngsters, moulds their character, builds up their personality and makes them fit to become responsible citizens. Similarly, the Apex Court iterated that legal assistants cannot be termed as ‘workman’ under the said Act in no circumstance whatsoever and remarked the same about that any such professional. There is no dearth of cases when it comes to exclusion of highly skilled professionals like lawyers, teachers, doctors, bank managers etc. from the ambit of workman, and thus, implying the fact that no labour legislation apply to such personnel simply because they are believed as noble professions and assumed to face nearly no social malady.

Clearly, a common link prevailing in all the referred case laws is that the court has settled the fact that ‘nature of actual work’ is the decisive factor while considering such cases and not what has been stated in his contract or the designation of the employee. The real test to determine the actual work performed by the employee is to see if the work involves a certain minimal degree of creativity and exercise of intellectual skill, and taking an initiative within the absence of direction. In different words, if the employee is required to think on his feet in performing his functions, is required to make certain decisions independently as to his functioning, and is not subject to direction in respect of matters during which he makes selections, then such factors can lead to a conclusion that he is not a workman.

There is no denying to the fact that professionals possess better means to sustain themselves, however, every profession does consist a vulnerable and exposed section of the members. Even otherwise, if the above distinction and exclusion of highly skilled professionals from the ambit of workmen is ignored, it may be safely construed keeping in mind our Constitutional Scheme that any person working to earn his livelihood must be guaranteed adequate working conditions, benefits and fair mechanism to resolve the disputes inter-se. The other reason that propels me to bring up this issue within the legal field is that lawyers have no social security as there is no welfare scheme ever framed by any of the Governments, if a lawyer dies an untimely death, there is no security to his family, and the entire family is ruined. This makes this noble class of professionals one of the most insecure and unprotected in India.

Consequently, the present work is dedicated to a few contributors in the administration of justice including fresh advocates in the practice area, Judicial Clerks-cum-Research Assistants and Advocate’s Clerks. The subsequent portion of the work would deal with the sympathetic condition of these vital stakeholders of the legal family and throw some light to the measures that ‘have been’ and ‘ought to be’ advanced to reduce their plight.

New Entrants in Practice of Law

This is not a hidden fact that survival of fresh advocates in the field of litigation is not a cakewalk. It requires a lot of mental, physical and emotional strength, and is something not very lucrative to even satiate one’s basic needs. This truth is applicable for both new lawyers who work under a senior lawyer or start their practice independently. A large number of them are paid a consolidated salary which is not adequate considering the amount and nature of work they are expected to perform.

Ordinarily, they are required to do a lot of grass root level work at different courts (in case of a metropolitan city), and are not paid a separate travel allowance for the same. It also needs to be considered that a considerable section of the crowd do not get requisite leaves in the month making their situation even worse. The saddened state of this particular group of lawyers has also caught the attention of the Bar Council of India (“BCI”) and some of the State Bar Councils. The BCI, in 2014, had proposed the Government of India to provide a fixed stipend of ₹5,000 to the new entrants, in order to address their woes. However, the government did not pay any heed to the same and therefore, no fruitful step has been taken by the Centre as of now.

Nonetheless, the seeds sowed by BCI started to bloom when State of Kerala and Union Territory of Puducherry have allowed stipend for young lawyers at ₹5,000 and ₹3,000 respectively. Needless to say, there is a criterion of providing such benefit to the lawyers of Kerala, which includes, inter-alia, lawyer to be aged less than 30 and having less than three years of practice, with annual income less than Rs. 1 lakh, while, Puducherry stipulates an additional condition of taking up the matters of the Legal Service Authority for being eligible for the stipend. This is an unprecedented move that will be cherished by the whole legal fraternity and must inspire other State Governments to take such laudable steps.

Apart from the above-stated move, there may be a few more steps that would probably reduce the problems and encourage the young blood to remain in the practice of law. They are enumerated below:

• The BCI and State Bar Councils should formulate rules stipulating the minimum salary to be paid by Senior Lawyers to their juniors keeping in mind the amount of experience they hold, payment of necessary allowances, and number of leaves annually etc. As part of recommendatory measures, BCI can draft a standard agreement for hiring services of new entrants stipulating all essential terms of the contract, and that may be applicable for specified number of years.
• The Central Government can formulate welfare schemes offering insurance cover and other benefits of such nature for a reasonable period of years after entering the practice.
• The State Governments may create a compensatory fund to meet the unforeseeable exigencies in the foundation years.

Pertinently, it may be clarified that BCI has been empowered to frame such rules and regulations so as to safeguard rights, privileges and interests of advocates. Also, the Hon’ble Supreme Court has time and again revered BCI rules and given effect to the same as far as of right of advocates to practice law, elections of State Bar Councils, training for qualification to be enrolled, employment of principal from law background as per the rules is concerned, and thus, making this a viable option of treating the young batch in absence of employment laws. Law clerks-cum-research assistants

The present group of law graduates is yet another stakeholder occupying a place at significance chart as far as contribution in administration of justice is concerned. Law Clerks-cum-Research Assistants, popularly known as Legal Researchers (“LRs”) to the Hon’ble Judges of the Supreme Court, is a short term contractual job for one year initially with a fixed stipend of ₹30,000 (₹50,000 from 1st April 2018) terminable at any time without any notice. In that manner, this group consists of full time employees, employed by Supreme Court of India for one year initially (extendable at wishes of the Hon’ble Judges) by way of inviting applications for selecting the suitable candidates.

At the very outset, it must be reminded that LRs are advocates and not law students at the stage of their appointment to the job. The very nature of their work demands them to work at the official residence of the respective Hon’ble Justices till the time he/she is working in the office provided the Judge himself call off the LRs day. Their work primarily involves substantive research tasks, preparation of case briefs after reading the paperbooks, assistance with preparation of orders and judgments, preparation of speeches, notes and articles on contemporary legal developments, and attending the court for noting down arguments. This shows the extent of dedication one has to work with the Judge of the Supreme Court to actually be a helping hand in day to day affairs. The fact of LRs being valuable an asset to the judicial system is reflected when their contribution is appreciated in landmark judgments.

Despite all this, it is unfortunate to note that this category of advocates does not enjoy any social security benefit during the subsistence of the contract. Even the agreement entered between the employer-employee also put them within the meaning of public servant for the purpose of Indian Penal Code, 1860 and Indian Official Secrets Act, 1923 and thus, enhances their accountability. However, they are paid a fixed consolidated stipend which has been raised from ₹30,000 to ₹50,000 only this year, but, an increase in stipend is not the sole solution to attract a better bunch of advocates for this prestigious role. Instead, their interests must be protected by introducing certain perquisites such as extending the benefits of Central Government Health Scheme till period of employment, reconsideration of number of leaves, opening of a contingency fund to deal with untimely exigencies, extending benefits like gratuity as provided to permanent employees of the court. It may be pointed out that the aforesaid idea of extending benefits of gratuity cannot be said as absurd in context of recent amendment that placed the “fixed term employees” at par with “permanent employees” for the purpose of regulation and protection under Industrial Employment (Standing Orders) Act, 1946. Also, it is utmost important to remember that as far as State Contracts of employment are concerned, which are essentially a by-product of a statute or subordinate legislation, have to withstand the test of Article 14 and 16 of the Constitution. The same posts are also available in most of the High Courts in India. The terms of employment at High Courts are closely similar to that of the Supreme Court and hence, are not separately discussed.

Advocates’ Clerks

Under this category comes the advocates’ clerks, who are privately employed persons doing all the clerical jobs ranging from preparation and filing of paperbooks to assisting them to the court, maintaining the cause list to taking care of all requirements at employer’s office. The tasks performed and managed by clerks cannot be enumerated or confined to a particular extent as they tend to perform every sort of petite clerical work that might be of help for their employer to battle it out in the court. A question that glares us at this stage is whether advocates’ clerks qualify as ‘workman’ and entitled to all the benefits under the prevailing labour law. The answer to this question, however, does not demand high level scrutiny of labour laws. The clerks do not come within the ambit of labour laws even though the nature of work they perform is substantially clerical for the purpose of Section 2(s) merely because the office of an advocate or firm of a solicitor discharges a non-commercial public duty and is deemed as liberal profession and thus, does not qualify as ‘industry’ for the purpose of Section 2(j) of the Act. Consequently, they are not entitled to protection under any of the social welfare legislations.

As already stated, their employment is a private concern whose conditions are governed by contracts, seldomly written, acting as the prime contributor to the present hardships and miseries. Their salaries vary on the volition of the employer and also enjoy no job security. Even though some clerks in the legal sector are generously paid by the Advocates and litigants, but this generosity is not a substitute for the social security benefits as a legal entitlement. These social security measures inter-alia are ex-gratia payment of compensation on untimely death or disability, provision of pension and provident fund, payment of medical benefits including family members, provision for group insurance policies etc.

This is despite the fact that Judiciary has always been appreciative of services and efforts of this class, and given due emphasis to the role they play. The Supreme Court, though dismissed a writ petition seeking direction to the Government of India to enact a law for advocates’ clerks, remarked that the Government shall consider the representation made by the petitioners sympathetically. Recently, High Court of Uttarakhand has delivered a landmark judgment directing the State Government to frame a law for advocate’s clerks and observed that the Clerks of Advocates are part and parcel in the administration of justice. Though, the major stakeholders in the judicial procedure are Judges and Advocates, without the efforts and contribution of paralegals like the clerks who assist the advocates in filing the case, documents, justice delivery system cannot be function. Moreover, it is pertinent to note that the Supreme Court mandates an Advocate-on-Record to employ a clerk and register the clerk on behalf of himself. It is the duty of all clerks to attend the registry regularly and any document accepted by them shall be deemed sufficient delivery of the same to the advocate himself. It is clear that clerks are more than mere employees as they act under the statutory approval. Shockingly, with all such responsibilities and stature, it is unfair to keep them deprived of right to social security measures under Article 21 of the Constitution.

In these circumstances, it cannot be over-emphasised that this class of workers is the most insecure and exploited in the legal profession due to the continuous inaction and failure of the state to fulfil its Constitutional responsibility. It is the need of the hour that effective steps should be taken by the State Governments to ameliorate their grievances. A few states have already enforced welfare acts to address this issue. In addition to the above, a few measures may be implanted to deal with this unfortunate situation in an effective and proper manner.

• The Central Government should frame a model law to provide all the social security benefits as are available to the workmen as under the Industrial Disputes Act, 1947. Subsequently, the State Governments should emulate the model law and formulate a state legislation to that effect.
• The Supreme Court and all the High Courts should hold that employment of all clerks shall be governed by a written contract, and should also draft a standard agreement to that effect.
• The Bar Associations of the Supreme Court and all the High Courts should contribute, whatever possibly they can, to improve the living conditions of clerks within the court premises.

Conclusion

The aforesaid discussion highlighted three dignitaries who, although, dispense separate and distinct contributions in shaping the legal system, but weigh identical and matchless when talking about adding value and prestige to the profession. Apart from being part and parcel of the legal system, one thing that binds them together is the inability to reap the benefits of employment perquisites due to non-application of labour laws. Perceived by all as a noble and liberal profession, the same should not become an excuse for excluding its members from the ambit of labour laws but a reason to legislate and eliminate the distress out of their working life. The measures adopted by the Governments, Judiciary and statutory authorities to boost the morale are appreciated but need quick implementation. Also, the actions proposed hereinabove can possibly help in granting reliefs to the concerned employees. In a nut shell, ceaseless inaction and failure on part of the state to safeguard functionaries of all such professions is nothing but a proof of failure of the state machinery to uphold the core values of the Constitution. As it is said, better late than never, it is time for the Central and State Governments to repent for the omissions and take appropriate steps to fulfil the Constitutional goal.