An enabling redefinition
A fresh definition of ‘retrenchment’ through modification in Indian labour laws is required to safeguard the interests of workers, including the ‘divinely abled’ ones
While the employment laws of India are generally known to be pro-employees, they are actually age-old, anti-economy, and full of exorbitant compliances. Additionally, they have a narrow and completely unbalanced approach. For instance, a factory, mine, or plantation, even if running into huge losses, is required to obtain prior permission from authorities to close down if there is a workforce of a hundred or more workers. This permission is given only in the rarest of rare cases. A militant union leader, even if creating a ruckus in an establishment, normally has to be dismissed after a disciplinary inquiry consisting of elaborate procedures. But ironically, if a worker is continuously ill, in many circumstances, he can be validly terminated without any legal complications as his termination is excluded from the purview of retrenchment laws.
In fact, even if a worker gets amputated while working in a factory, the only remedy available to him is petty compensation under the Employee Compensation Act or peanut benefits under the Employees State Insurance Act, 1948. The Rights of Persons with Disabilities Act, 2016 (PWD) enlarged the scope of the previous Act of 1995, especially with respect to the kind of disabilities, social and economic rights, accessible infrastructure, transportation, communication, technologies, rehabilitations, conditions of services, better participation, etc. The PWD Act mandates equal access to education and employment for persons with disabilities. The amended Act also covers private establishments to a large extent but does not explicitly protect its employees from termination, as in the government sector or grant any excess compensation.
An amendment in the Industrial Disputes Act is a possible solution to fill in the gap, especially in the definition of retrenchment. Modification of Section 2(oo) defining 'retrenchment,' which excludes termination on grounds of continuous ill-health in its clause (c), is needed. Undoubtedly, while framing or amending such legislation in a country like ours, one cannot be too large-hearted and has to be pragmatic. A balanced approach is needed. Distinctive provisions can be made based on the size of such business entities. For instance, while it may not be fair to burden small-level companies with compulsions, sizable ones can be imposed with certain restrictions in cases of employees becoming indisposed for longer durations. Similarly, a re-look at the Employee Compensation Act as well as the Employees State Insurance Act, 1948 is needed. There should be a mandatory provision for insurance and better premiums.
At the same time, the misuse of benevolent provisions by employees in government sectors also needs to be checked. Over-extended leaves under the garb of the Disabilities Act, based on fake medical documents, need thorough scrutiny. Similarly, committing misconduct and then claiming protection of employment also needs to be dealt with caution, as a series of judgments have already held.
Basic human rights are fundamental to every individual's existence and an indispensable obligation for the country's administration. The Constitution of India secures to the citizens, including the divinely abled (disabled), the right to justice, liberty, equality of status, and opportunity, among other things. Needless to say, this cannot be achieved unless other laws are made in consonance. The United National Convention on the Rights of Persons with Disabilities (UNCRPD), an international document, has been framed to protect the human rights and dignity of persons with disabilities.
Furthermore, when it comes to Corporate Social Responsibility, one of the noblest endeavours that corporates can undertake is to invest in the careers of divinely abled individuals and provide specialised training, especially in the technology sector. A life of dignity is of utmost importance. Divinely abled individuals often put in more effort than anyone else and tend to be loyal to organizations. This would also lead to a lower attrition rate, although currently it is the highest in this sector, creating multiple challenges for HR. In fact, such foundations can also cater to one of the most pertinent needs of our country, i.e., a technologically advanced workforce.
With the modification and addition of certain laws, apart from the full implementation of existing legislation, much can be achieved. A country is known by the way it treats divinely abled people. Not only should they be provided with basic human rights and equality in every opportunity, but the benefits should be such that they experience life as a celebration.
The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal