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TMI Blog1977 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... oncern for its welfare cease to achieve the desired goals when the legal process limps and lingers and rights turn illusory' when remedies prove elusive. The life of rights is remedies and a jurisprudence of ready reliefs alone can inhibit the weaker numbers of our land asking the disturbing question: 'Is Law Dead . Dicey wrote long ago: The saw ubi jus ibi remedium, becomes from this point of view something much more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labors gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen. It is more than rhetoric to say that courts belong to the people. 'Judges occupy the public's bench of justice. They implement the public's sense of justice'. If the Courts are the fulcrum of the justice-system, there is a strong case for the reform of Court methodology and bestowal of attention on efficient management of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n battle at the bar has been over the correct principles in a scheme of gratuity for factory workers and further whether those principles have been departed from under the award assailed by the appellant. We may mention. at this stage, that the Parliament has enacted the Payment of Gratuity Act, 1972, which has come into force with effect from September 16, 1972. Section 4(5) of -the said Act gives an option to the workers to choose between the gratuity scheme under the award and the one under the statute. Had the workers been represented before this Court it might have been possible for us finally to close this controversy or even produce a reasonable solution by discussion and negotiation and persuade them to opt for one or the other scheme. Early finality, credible certainty and mutually assented solutions, are the finer processes of conflict-resolution-a pursuit which baffles us here because of labour's absence. All that we can do, therefore, is to adjudicate upon the correctness or otherwise of the principles which have gone into the gratuity scheme prepared by the tribunal in the light of the rulings of this Court and the canons of industrial law. We now proceed to ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and rejects absolutes. The recent constitutional amendment (Art. 43A) which emphasizes the workers' role in production as partners in the process, read in the light of the earlier accent on workers' rights and social justice, gives a new status and sensitivity to industrial jurisprudence in our 'socialist republic'. This social philosophy must inform interpretation and adjudication, a caveat needed because precedents become time-barred when societal ethos progresses. We are not called upon to interpret an Act since, in this area of law, the Payment of Gratuity Act came in on a later date. Judge-made law rules the roost. Even so, are we fattered by inflexible norms halLowed by dated decisions Not in this jurisdiction. 'The golden rule' in a rapidly changing system, 'is that there are no golden rules'. We should be guided by realistic judicial responses to societal problems, against the back drop of the new, radical values implied in 'social justice' to labour, the production backbone of the nation, adjusted to the environs of the particular industry and its economics and kindered circumstances. The dynamics of labour law, rather than the bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-star loveliness. The weaker qualify for protective order, in the over-all view of the matter. Gratuity for workers is no longer a gift but a right. It is a vague, humanitarian expression of distributive justice to partners in production for long, meritorious service. We have, therefore, adopt a broad and generous approach to the problems posed before us by Shri Shroff without being mechanistically precedent-bound or finically looked into evidence. Speaking generally, Shri Shroff focussed his fire-power firstly-on the qualifying period of five years for earning gratuity as against ten years sanctified in some earlier rulings and, secondly, on the basic wage, as contrasted with the 'consolidated' wage being treated as the base for the computation of gratuity. He did cite half-a-dozen of more cases of this court in support which, on closer scrutiny and studied in the light of other citations Shri Parekh emphasized, stand neutralized. The Tribunal has itself referred to many rulings of this Court, noted the features of the industry in question, the high dividends and 'the low wages and reached a via media which we may regard as a prudent judicial resolution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dear food allowance but shall not include bonus. (iv) Gratuity will not be. allowed to a work- man in case of a serious misconduct committed by him such as insubordination, acts involving moral turpitude, etc. In case of damage to the property of employers or financial loss, the amount to the extent of loss shall be liable to be deducted from the amount of the gratuity. (v) The basis of payment of gratuity shall be average earnings of a workman during the last three years. One of the leading cases both sides referred to is the Delhi Cloth General Mills Co., v. Workmen Ors.(1) In this decision the court did make the point: That gratuity is not in its present day concept merely a gift made by the employer in his own discretion. The workmen have in course of time acquired a right to gratuity on determination of employment provided the employer can afford, having regard to his financial conditions to pay it. Shah, J. speaking for the Court, also emphasized what we have already adverted to: We consider it right to observe that in adjudication of industrial disputes settled legal principles have little play; the awards made by industrial tribunals are often the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the Court high-light the view that determination of gratuity is hot based on any definite rules and each case must depend upon the prosperity of the concern, needs of the work, men and the prevailing economic conditions, examined in the light of the auxiliary benefits which the workmen may get on determination of employment. In short, the core of the matter is the totally of the circumstances and the stage of evolution of industrial relations at a given time What held good a decade ago may be given the go by years later. Another leading case on the question of gratuity is the British Paints(1) where, after referring to the special features of the particular industry. and the other benefit schemes enjoyed by the employees, the Court referred to May Baker where basic wages were treated as the basis and British India Corporation where 'gross salary i.e., basic wages plus dearness allowance' was held to be the basis. It may be noted that in this case the minimum qualifying service for gratuity was held to be 5 years except in cases where termination resulted from resignation by the employee. In Hydro-Engineers(2) this Court apparently upheld the contentions now urged be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resignation by the employee where the qualifying period was raised to 10 years. This survey of the cosmos of case-law can expand, but no service will be rendered by that exercise. All that we need say is that there is nothing fundamentally flaw some in the 5-year period being fixed as qualifying service. The real reason why some cases like British Paints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retirement or resignation would ensure that workmen do not leave one concern for another after putting in the short minimum service qualifying for gratuity. We think that current conditions must control the tribunal's conscience in finalizing the terms of the gratuity scheme. Taking things as they are, in our country presently there is unemployment at the level of workers--that being the category we are concerned with. Colossal unemployment means that the worker will not leave his employment merely because he has qualified himself for gratuity. In an economic situation where there is a glut of labour in the market and unemployment stares the working class in the face it is theoretical to contend that emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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