New act fails to save disabled workers from getting fired
By Raavi Birbal | Published: 22nd July 2017 10:00 PM |
Srikanth Bolla, CEO and founder of Bollant Industries and first international blind student at Massachusetts Institute of Technology, had once said: “The world looks at me and says, ‘Srikanth, you can do nothing.’ I look back at the world and say ‘I can do anything’.” Perhaps, we need to realise the cosmic potential of the divinely-abled.
While the labour laws of India are generalised as pro-workman, in my view they are actually anti-economy, full of complex compliances, and have a narrow approach. For illustration, a workman-level militant employee creating sheer ruckus in an establishment has to be normally dismissed after a departmental enquiry, consisting of elaborate procedures. A factory even if running into colossal losses is required to obtain permission to close down in case its workforce sums to a 100 or more workers. Such a permission is given only in rarest of rare cases. But ironically, if a workman is continuously ill or gets disabled/handicapped, according to catena of judgments of various courts he can be validly terminated without any legal complications, even if the company is one of the Fortune 500s.
Astonishingly, even if a workman gets amputated while working in a factory, according to judicial pronouncements the only remedy available to him is in form of peanut compensation under the Employee Compensation Act, 1923, or petty benefits under the Employees State Insurance Act, 1948. However, claims under the Industrial Disputes Act, 1947, which governs conditions with respect to termination etc, are outrightly rejected.
In government sector, rights of disabled people were protected vide The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. According to provisions of the Act, no government office could have dispensed with or reduced in rank an employee who acquired disability during service. . The Act now stands replaced by The Rights of Persons with Disabilities Act, 2016 which is effective since April 19, 2017. The new Act has enlarged the scope, especially with respect to the kind of disabilities, economic and social rights, rehabilitations provided etc. The amended Act also covers private establishments to a large extent, but does not explicitly protect its employees from termination, such as in government sector.
An amendment in the Industrial Disputes Act is a possible solution to fill in the gap. A re-look and/or clarification of Section 2(oo) of the said Act, which defines ‘retrenchment’ and excludes termination on grounds of continuous ill-health in its clause (c) is needed. Undoubtedly, while framing or amending such legislations in a country like ours, one cannot be too large-hearted and turn oblivious to economic realities. A balanced approach is needed. Uniform provisions cannot be framed for all sorts of companies. Distinctive provisions can be made on the basis of size of such concerns. For instance, while it may not be fair to burden small-level companies with too many compulsions, sizeable ones can be imposed with certain restrictions in cases of employees becoming disable.
One more aspect that requires scrutiny is the misuse of benevolent provisions by employees in government sectors. Over-extended leaves under the garb of Disabilities Act on the basis of fake medical documents need a thorough check. Similarly, committing misconduct and then claiming protection of employment, too, needs to be dealt with caution.
Maybe we are way too far from Morgan’s Wonderland in San Antonio, Texas, for the special ones. But basic human rights are fundamental to every individual’s existence and an indispensable obligation for the county’s administration. Just like CNBC’s Linda Federico-O’Murchu recognised that people with neurological disorders tend to be more creative, energetic and laser-focused, we, too, need to transform our perspectives.
Advocate, Supreme Court of India