Fifty-three contractual workers, all ward attendants from Bangalore’s Victoria Hospital, working for a span of 25-30 years were terminated from their services on May 8, 2024. These workers were removed after a change in contract from an agency named Swiss to Sprooti. The salaries were not paid to the workers for the past two months. The workers waited in anticipation with good hope, believing their due salaries would be promptly paid.
But what came to their rude shock was that they had been terminated from the contract. This news came to light only when the workers demanded their salary in the third month, highlighting a complete lack of transparency from the principal employer and the contractor. The workers were completely kept in the dark.
The workers staged a peaceful sit-in for two days at the hospital premises demanding reinstatement and payment of their due salary. These workers, mainly women who belong to the deprived sections of the societies, had played a major role during the pandemic, lifting bodies from one place to another, preparing them for final rites when the doctors, nurses, and policemen refused to touch the bodies. Now, these workers have been terminated without prior notice, suddenly which amounts to wrongful termination.
The contract agency has flouted the Contract Labour (Regulation & Abolition) Act, 1970 which inter alia states that the contractor shall be responsible for the payment of wages before the expiry period. In case the contractor fails to make the payment, the onus falls on the principal employer. Moreover, in this instance, the workers were not being paid minimum wages and also wages for overtime work (OT). It has been held by the Hon’ble Supreme Court that payment of wages including overtime wages etc. must be made directly to the workers in full except with authorised statutory deductions. The wages being not paid for the work done also amounts to bonded labor.
The Bangalore Police Order (2022): Unreasonable order curtailing dissent?
What also lies at the heart of the story is the controversial ‘Licensing and Regulation of Protests, Demonstrations and Protest Marches (Bengaluru City) Order, 2021,’ promulgated by the Commissioner of Police, Bangalore as per the powers conferred to him under the Karnataka Police Act, 1963. The order makes it unlawful for any protest, demonstration, or march to be conducted outside Freedom Park. In other words, Freedom Park was the venue designated for protests, etc. This order was notified in the state official gazette on January 10, 2022. The origins and background of the order can be traced back to the March 2, 2021 protest by the Anganwadi and RTC workers demanding a hike in wages. Justice Arvind Kumar shot off a letter to the Chief Justice of Karnataka on the traffic being affected in Bangalore because of huge protests such as of March 2nd. The court took suo-moto cognizance of the petition and passed an interim order on March 3, 2022, prohibiting all rallies held outside Freedom Park. Interestingly, the order was notified by the Commissionerate even whilst the hearing was still underway.
When the sit-in demonstrations of the workers entered the third day, the police forcefully detained them for flouting the Licensing Order (2021). Many workers were whisked onto the bus by applying force, manhandled, and abused. It is to be noted that the manner of their removal was in total violation of law which was also observed by the Deputy Labour Commissioner during the conciliation. The workers were asking for their rights through the mode of sit-in.
Workers arguments:
The workers argued that injustice has been meted out to them by the hospital by ‘throwing’ them from jobs where they have been working for many years and hence the dissent against this injustice would also be exhibited in the hospital premises. The workers requested the police that they were not creating any nuisance to the general public but only demanding their rights by sitting in the corner. But the police were in no mood to listen to them and kept contending that they were following the orders of the High Court vis a vis the 2021 Order. One agitated worker noted “We have swept floors here, gave medicines to patients here and they are asking us to go to Freedom Park now where our voices would be unheard.’’
The transpiring of events also shows the lack of empathy by the hospital management. The Dean was said to be on leave and hence no decision could be taken till Monday as to the reinstatement of the workers, the hospital contended. The In-charge Dean having the capacity to take back the workers till the next conciliation refused to take any responsibility despite the interim suggestion by the Conciliation officer to recruit the workers. The workers at the end demanded an assurance – for ending the sit-in – from the Dean on call that he would speak to them on Monday. Even then the Dean refused to. This shows the egoistic attitude of the management who have taken the workers for a ride. A sense of indifference towards the problems of the contractual workers was displayed by the Victoria Hospital.
Managements contentions:
The Hospital management contends that the terminated workers are contract workers and as the contractor has changed two months back, the hospital would in no way be responsible for the termination of their services. Also, they contend that they have reached a maximum working strength and continuing with these employees in the absence of a legal order, would lead to unnecessary financial burden.
It is to be noted that despite working for a span of 10 to 30 years, these workers were not considered permanent employees and now have been replaced by another set of workers. The apex court has held that an ad hoc or temporary employee must only be replaced by a regularly selected employee, to avoid arbitrary action on the part of the appointing authority. That has been the established law and settled principle. But in this case, the existing contract workers have been replaced by another new set of workers. It has also been held that, if for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. This case would be a classic case for the regularization of the contract workers as many of them have been working since the 1990s with the hospital.
Further, the management washing off its hands from its responsibility is violative of principal employer liability and Contract Labour Act. The act states that the principal employer would be vicariously liable for payment of wages for default by the contractor. In Hussain Bhai v. Alath Factory Tozhilali Union and Ors. the Supreme Court has categorically held that the presence of the intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, it is found, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. In another case, the apex court has held that the principal employer is the real master of the business and has real control of the business. He is held liable because he exercises supervision and control over the labor employed for and on his behalf by the contractor. Given this well-settled principle, the hospital being a principal employer and managing all the activities as a decision-making authority cannot shrug off its responsibility.
Analysis of the Licensing Order, 2021:
Now focusing the analysis back to the Licensing Order 2021, it is to be understood that the objective of the order and the High Court decision was to restrict protest to one place in the city to ensure that the traffic was not impacted and non-protestors’ rights were not affected. But what if the show of dissent happens in a confined place without affecting the traffic as in this case? But the order in particular has been used to scuttle voices and make them unheard. ‘One size fits all’ seems to be an apt reference to the usage of the Licensing Order 2021 to curtail dissent and freedom of speech and expression by the Police. The order has been sweepingly used and applied against industrial disputes also. Again, in this case, the employees were expressing their dissent against the ‘illegal act’ of the employer. Moreover, gathering always at Freedom Park is not feasible, and also protests held there have no visibility.
Article 19 (1) of the constitution inter alia states that the citizens have the right to assemble peaceably and without arms. Clause 3 of the article provides for limitations on the right to assemble. It states right to assemble could be curtailed subject to public order, sovereignty and integrity of India, and other reasonable restrictions. The court time and again has stated that the reasonable restrictions must be procedural and substantive and cannot be arbitrary.
In one such case, the apex court held: In order to be reasonable, “restrictions must have a reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object”. The restriction made “in the interests of public order” must also have a reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is reasonable.
Section 4 (i) of the 2021 order reads: ‘The venue for protests in Bengaluru City is identified as Freedom Park. However, depending on the situation, the Commissioner of Police may also designate any other suitable place in the city.’ A simple reading of the section indicates that all protests would happen in Freedom Park & nowhere else. When tested on the anvil reasonable restrictions, the order fails the test of proportionality as it generalizes all protests, demonstrations, and also those which may not impact traffic movement (public order) even applying to industrial disputes. In Fenner (India) Limited v. The Superintendent Of Police the Madras High Court held.
It may be the right on the part of the union to hold peaceful demonstrations, however, such demonstrations cannot be allowed to become violent or intimidating in nature. The safety of those visitors who are visiting the employers’ premises as well as those willing workers including their smooth ingress and egress is also to be ensured. This balance is to strike between the two competing and conflicting interests.
The workers staging a peaceful sit-in at the premises did not obstruct the day-to-day happenings of the hospital. For two days they continued their sit-in without causing any inconvenience to the general public. The curious onlookers saw them and the hospital management was also forced to come & talk to them which would not have been possible if the workers protested in the Freedom Park.
The state administration and the judiciary should understand that this exactly is the purpose of protest, demonstration, and sit-in. In re Ramlila Maidan Incident[3] the Delhi Police came up with a prohibitory order stating unrestricted holding of a public meeting in the area is likely to obstruct traffic, cause danger to human safety, and disturb public tranquillity. The court criticizing the order held that no doubt liberty is restricted under the constitution but “unwarranted governmental invasion and intrusive action is also protected under the laws of the country” and hence declared “law cannot be enforced for crippling the freedom merely under the garb of such regulation.” The court therefore noted in this case that citizens have a fundamental right to assembly and peaceful protest, which cannot be taken away by an arbitrary executive or legislative action.
The state administration and the judiciary should understand that this exactly is the purpose of protest, demonstration, and sit-in. In re Ramlila Maidan Incident[3] the Delhi Police came up with a prohibitory order stating unrestricted holding of a public meeting in the area is likely to obstruct traffic, cause danger to human safety, and disturb public tranquillity. The court criticizing the order held that no doubt liberty is restricted under the constitution but “unwarranted governmental invasion and intrusive action is also protected under the laws of the country” and hence declared “law cannot be enforced for crippling the freedom merely under the garb of such regulation.” The court therefore noted in this case that citizens have a fundamental right to assembly and peaceful protest, which cannot be taken away by an arbitrary executive or legislative action.
Designating a place for protest does not serve any meaning for the protest since the purpose of protests and other demonstrations is to bring apathy to the notice of the general public at large and the state.
When the illegality has happened at a particular place, it is to be opposed and protested at that place. The Karnataka government needs to rethink and reconsider this arbitrary order and ensure that proper balance is struck between two competing interests i.e. right to protest-legitimate use of public places and ensuring no inconvenience is caused to others, designating a place for protest would not help. The civil liberties of the individuals have to be upheld in its true and genuine sense. It has to be understood that showing of dissent at a space is also one of the legitimate use of public places.
(Post-script: After a determined protest and constant intervention by the Karnataka General Labour Union, illegally terminated workers were reinstated and promised their pending wages. This win belongs to the workers’ unwavering spirit and exemplifies Dr. Ambedkar’s call to “Educate, Agitate, Organize.” It’s a reminder of the power of unity, struggle and moreover the importance of protests. Hail Workers Unity!)
The author is a 4th year student of law studying at KSLUs Law School, Hubli.
