In India, the post independence labour law regime has been influenced by the vision of the founding fathers, reflected in the Constitution, which calls for respect and recognition of the principles of dignity of labour and human rights. The expansive interpretation of the fundamental rights, more particularly, Article 21 concerning the right to life and personal liberty, have ensured that the rights of the labourers and those in the unorganized sector are protected and recognized. The directive principles of State policy also cast an obligation on the State to secure dignity of labour, equal pay for equal work, equitable distribution of resources and decent standard of living for the citizens. Labour being a concurrent subject, both Centre and States are competent to legislate on it. Thus, labour laws concerning different aspects of labour namely, occupational health, safety, employment, training of apprentices, fixation, review and revision of least wages, etc. were enacted by Parliament as also by the various State legislatures.
In 1999, the government set up the second national labour commission, headed by Ravindra Varma which recommended that all the labour laws must be compiled into four or five codes. A step towards fulfilling the recommendations of the commission, The Code on Wages was passed in August last year compiling four different labour laws namely the Payment of Wages Act, 1936; The Minimum Wages Act, 1948; The Payment of Bonus Act, 1965; and The Equal Remuneration Act, 1976 into one consolidated law.
Section 53 of the Code on Wages provides that an officer (not below the rank of an under-secretary) to the government will be notified with power to impose a penalty in the place of a judicial magistrate. In this article, we argue that grant of power to impose penalty on an officer of the Government is problematic and that Section 53 suffers from certain Constitutional infirmities. It is pertinent to peruse Section 53 of the Code. Section 53 reads as follows;
“53. (1) Notwithstanding anything contained in section 52, for the purpose of imposing penalty under clauses (a) and (c) of sub-section (1) and sub-section (2) of section 54 and sub-section (7) of section 56, the appropriate Government may appoint any officer not below the rank of Under Secretary to the Government of India or an officer of equivalent rank in the State Government, as the case may be, for holding enquiry in such manner, as may be prescribed by the Central Government.
(2) While holding the enquiry, the officer referred to in sub-section (1) shall have the power to summon and enforce attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document, which in the opinion of such officer, may be useful for or relevant to the subject matter of the enquiry and if, on such enquiry, he is satisfied that the person has committed any offence under the provisions referred to in sub-section (1), he may impose such penalty as he thinks fit in accordance with such provisions.”
It is thus clear that for contravention of clauses (a) and (c) of sub-section 1 of Section 54 or for contravention of sub-section (2) of Section 54, penalty may be imposed by the said officer appointed by the Government. Furthermore, such penalty may also be imposed for contravention of clause (7) of Section 56. A reading of these provisions reveals that the following violations are stipulated by them;
(a)- Non payment of amount due to the employee as per the provisions of the code
(b)- Contravention of any other provisions, rule, order under the Code (other than the contraventions expressly mentioned in the provisions of the Code)
(c) Non-maintenance or improper maintenance of records in the establishment.
(d) Non compliance with compounding order made by gazetted officer.
In our submission, Section 53 contravenes Article 50 of the Constitution of India. Though Article 50 forms part of the chapter containing the Directive Principles of State policy and is therefore not enforceable in a Court of law, it is clear that the principle of separation of powers has been recognised and enforced by the Courts and has also been used as a tool to strike down similar provisions.
Section 3(4) of the Code of Criminal procedure lays down clear demarcation of power between the judicial magistrate and the executive magistrate. It vests the judicial magistrate with the powers to examine the evidence, conduct trails which may expose any person to punishment or penalty or detention. Whereas the executive magistrate dispenses primarily administrative duties; it includes granting, suspension or cancellation of a licence and sanctioning or withdrawing from a prosecution. The function of the executive magistrates is administrative and limited to maintenance of law and order. Notwithstanding this, they also perform certain judicial functions such as obtaining bonds and security for maintaining good behaviour and peace under sections 107,108,109,110. They are also empowered to issue orders against any nuisance and apprehended danger and restore public tranquillity.
In the case of Mammoo vs. State Of Kerala and Anr the Kerala High Court was considering the question as to whether a District magistrate exercising functions under Section 16(1) of the Telegraph Act was an ‘inferior criminal court’. The Court took note of Section 3(4) of the Code of Criminal Procedure and held that the executive magistrates are to perform their functions as per the provisions mentioned in the code and if acting under any other law other than the code they must strictly adhere to the performance of executive or administrative functions. Since the enforcement of the Code of Criminal Procedure, there has been a complete separation of the judiciary and the executive. This has been done to implement the mandate of Article 50 of the constitution which contains a Directive Principle of State Policy that the State shall take steps to separate the judiciary from the executive in the public services of the State.
In Hanumantsing Kubersing vs State Of Madhya Pradesh the vires of Section 21 of the Bonded Labour System (Abolition) Act, 1976 were under challenge before the Madhya Pradesh High Court. The said provision empowered the revenue officers designated as executive magistrates to try offenses under the Act. The Madhya Pradesh High Court struck down the said provision as it violated Articles 14 and 21 and was contrary to the principle laid down in Article 50.
The said provision was also struck down by the Madras High Court in the case of Union of India vs Gajendran wherein the Court observed, “By merging the judicial function in the executive, the basic structure of the Constitution is affected; justice and fair trial cannot be ensured by the Executive Magistrates in as much as they are not required to be legally qualified and trained persons and in actual practice are required to perform various other functions. Their powers under the Code are limited for the purposes of maintenance of law and order…’’
Again in Aldanish Rein v Union of India, a three judge bench of the Supreme Court, observed that the executive magistrates are under complete control of the executive government. Their promotion, increments and seniority of services, etc. are all dependent on their higher officers, who belong to the Executive.
The apex court in Statesman (Private) Ltd. v. H.R. Deb &Orsheld that ‘the appointment of a person from the ranks of civil judiciary carries with it a unique assurance. The functions of a Labour Court are of great public importance and quasi civil. Men of experience on the civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and also performing some judicial functions may not truly answer the requirement and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions. For it cannot be denied that the expression “holding a judicial office” signifies more than discharge of judicial functions while holding some other office.’
Section 53 of the Code on Wages, 2019 does not confer upon the members of the executive, the power to conduct trials. Hence, it is possible to distinguish with the judgements of the several High Courts which have emphasized the need of separation of the judiciary and the executive. However, a perusal of the said provision indicates that a substantive power to arrive at the decision regarding innocence or guilt has been conferred on the government official. A residuary power to impose penalties for violations of the provisions of the Act for which there is no express provision made, have also been conferred on the executive official. This, in our submission, falls foul of Articles 14, 21 and 50 of the Constitution of India. In view of the settled jurisprudence on this subject, it is possible to arrive at the conclusion that Section 53 of the Code on Wages suffers from certain Constitutional infirmities.