By: Mridul Anand
INTRODUCTION
The principle of the special treatment of government employees in India has colonial genesis.. In England, for centuries the officials appointed by the Crown were provided a distinct set of privileges and rights that were different from those provided to the common citizens. This practice, which started with the Saxon kings —including exemptions from taxes, municipal duties, etc. —was challenged in 1642 by the Parliament due to its misuse by the officials. Consequently, the idea of ‘duante bene placito regis’—which means ‘during the good pleasure of the King’ was reaffirmed, and it was established that the exemptions provided would also be subjected to the pleasure of the Crown.
These principles have been enshrined in the Indian Constitution under Articles 309 to 311. Article 309 gives the power to the State to formulate rules which hold precedence over any conflicting provision present in the ‘terms of the contract of appointment’. Similarly, Article 310 reaffirms the principles of duante bene placito regis, and Article 311 provides rules for the termination of government servants. Evidently, there are no specific rules governing the service of government employees in the Constitution.
Recently, the labour rights of government employees have received a significant amount of public attention. First, due to the termination and subsequent reinstatement of the government employee by the government of Jammu and Kashmir, and second, due to a recent Supreme Court case. However, it is important to clarify that the scope of this paper is limited to the recent Supreme Court judgment and similar judgements.
While the services of government employees are governed by departmental rules in addition to Articles 309 to 311 of the Constitution, the same might not even include basic labour rights. This article attempts to establish that the special treatment afforded to government employees cannot be used as a justification to deprive government employees of their fundamental labour rights. In doing so, cases like the recent judgement will be analysed, and concerns with respect to the stance taken by the courts will be highlighted. Finally, recommendations would be made that would conclude the discussion.
VIJAY D KASBE AND THE ESTABLISHED JURISPRUDENCE
‘Overtime’ is considered an important element of the labour rights of an employee and is governed by different laws and regulations in India. Overtime essentially refers to the number of hours worked over the number of hours (around forty-eight hours per week) specified in the labour statutes. They hold significance for employees because they increase their earning potential, which eventually provides extra financial support. Further, this also allows employers to have a cost-effective way of increasing productivity.
In April 2023, the Supreme Court in Security Printing and Minting Corporation of India v. Vijay D Kasbe, while dealing with the right of government employees under the Factories Act, 1948 held that the government employees working in a company under the Ministry of Finance —that is involved in the minting of currency notes — are not entitled to claim overtime allowances worked beyond eight hours a day. This was with respect to their claim of double overtime allowance under Section 59 (1) of the Factories Act, 1948. The Court held that they hold civil positions and cannot be equated to factory workers.
There were claims made by the Respondent (government) that the employees fall under the definition of supervisor, precluding them from eligibility for overtime allowance under the Factories Act, as per rule 100 of the Maharashtra Factories Rule, 1963(‘Rules’). On the other hand, the employees contested these claims by contending that they were performing manual labour and clerical work as a part of their duties, thereby disqualifying them from the supervisor designation. The Court accepted the government’s argument and categorized the workers as supervisors to exclude them from the ambit of the Factories Act.
Nonetheless, there were broader Constitutional nuances considered by the Court to arrive at its conclusion. The Court observed that since government servants enjoy ‘several special privileges’ provided under the Constitution which are not provided to the other labourers, the government servants should not be allowed to claim overtime allowances. The Court held that the appointment to a civil post is an appointment of status that must exclusively adhere to statutory provisions as outlined in Article 309. Thus, even if the issue of supervisor versus worker had not arisen, the verdict of the Supreme Court would have been the same.
Moreover, in the present case, the Court took the shield of Fundamental Rules and the Supplementary Rules (FRSR) that were issued in 1922. These rules continue to be applicable even after independence under the transitional provision of Article 313. Article 313 of the Constitution declares that until another provision is enacted regarding public services, the laws applicable to any public service or post before the commencement of the Constitution would continue to be applicable. The Court observed that under Rule 11, of these rules a person holding public service has to be at the disposal of the government all the time. Therefore, government employees have no scope to seek double overtime allowance. This is inherently unreasonable and based on archaic colonial values as discussed in the subsequent parts of the article.
THE LIMITATION OF THE CONSTITUTIONAL PROVISIONS
Similarly, in the case of Tamil Nadu Non-gazetted Government Officer v. Registrar of Trade Unions, it was argued by the Court that civil servants should not be allowed to engage in collective bargaining when they retain constitutional safeguards provided under Article 311. However, on a plain reading of Article 311, it is clear that the provision only pertains to dismissal, removal or reduction of rank and does not outline any other guidelines for the other terms of the government employee.
Article 309 or Article 311 of the Constitution does not provide extensive guidelines on the rules for recruitment or conditions of service of the Union or of the State, instead the same is the prerogative of the legislature. Accordingly, each department has its own set of rules and guidelines for its employees. Moreover, these provisions of the Constitution are merely enabling provisions and they do not put any obligation on the rule-making bodies to follow certain guidelines for the conditions of services of the government employees.
Furthermore, the Constituent Assembly debates demonstrate that comprehensive legislation for the service of civil servants is required and until the legislation is made, the rules can be made under the proviso of Article 309. Consequently, Article 309 cannot be considered as an all-encompassing provision for the matters related to services of government employees. Hence, the Constitutional provisions do not provide a check on the departmental guidelines or the other statutes.
Evidently, according to the aforementioned judgements, if the departmental regulations do not address the fundamental labour rights of the government employee, there exists no way to confer that right to the employees. This arises because the Constitution does not explicitly guarantee any rights apart from the rights associated with their termination or dismissal. Consequently, this renders government employees without any means of redress or recourse.
(Mridul Anand is a law undergraduate at West Bengal National University of Juridical Sciences. The author may be contact via mail at mridul221126@nujs.edu)
Cite as: Mridul Anand, The Erosion of the Labour Rights of Government Employees in the Name of Constitutional Protections (Part 1), 9th July 2024<https://rmlnlulawreview.com/2024/07/09/the-erosion-of-the-labour-rights-of-government-employees-in-the-name-of-constitutional-protections-part-1/>date of access.
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