Author: Sharada A Kalale is a fourth year student at National Law University Delhi.
The article aims to critically analyse the challenges faced by contractual sanitation workers, particularly focusing on the judicial system’s shortcomings in addressing their rights and protections. It highlights the inadequacies and blind spots in judicial decisions and legal frameworks that fail to address the structural issues affecting these workers. Despite regulations such as the Contract Labour Act, 1970, and legal precedents like Municipal Corporation of Gr. Mumbai v. Kachara Vahtuk Shramik Sangh, the contractual system continues, leaving workers in precarious positions. Judicial interventions, including rulings from the Bombay and Madras High Courts, have taken varied approaches to address these challenges, yet significant gaps remain in ensuring permanency and fair treatment for all workers.
Introduction: The plight of sanitation workers
The sanitation industry’s contract system is widely acknowledged for its exploitative nature, exploiting the ambiguities in outsourcing arrangements and perpetuating poor working conditions.[i] Despite the substantial similarities in the tasks performed by all sanitation workers—whether permanent, contractual, or outsourced—their pay and benefits exhibit significant disparities. Permanent sanitation workers under the Municipal Corporation earn twice as much as contractual workers and thrice as much as outsourced workers.[ii] Moreover, these workers often lack awareness regarding their entitlements and deductions[iii], with many not receiving mandated wage slips which is required to claim minimum wages under 18(3) of the Minimum Wages Act, 1948. The absence of basic safety equipment further exacerbates the precariousness of contracted workers’ positions.[iv]
Many contractual workers lack formal identification and written contracts, which are prerequisites for accessing government benefits and schemes. Additionally, a growing number of them are not affiliated with Safai Karamchari unions. Contractors often secure contracts through personal connections with officials, and often, penalties against them are inconsistently enforced. Even though, municipal corporations increasingly favour contractual employment, there is a lack of standardization of equipment and contract terms, which are mostly subject to interpretation.[v] Contractual workers endure uncertainty, clinging to their jobs in hopes of regularization. The prevalence of informal contractual arrangements has shifted the workforce composition towards irregular and non-standard employment categories. Safai and scavenging labourers face numerous adversities, including occupational hazards, subcontracting practices, injuries, and inadequate training.[vi] They lack social security benefits such as health insurance, provident funds, fixed wages, weekly holidays, and medical leave entitlements.[vii] Labour contractors often obscure wage information from municipal corporations, exacerbating workers’ vulnerabilities.[viii]
Loopholes in the Statute
According to Sec 10 of Contract Labour (Regulation and Abolition) Act 1940, the appropriate government can be proscribed from engaging contract labour for tasks deemed “perennial” in nature by the appropriate government, a classification to which sanitation inherently belongs, despite this several governments have failed to impose such prohibition. Also, the Contract Labour Act of 1970, which delineates labour rights for contract workers, applies solely to establishments employing a workforce exceeding 20 individuals.
The General Secretary of one of the sanitation worker unions, has pointed out that many Municipal Corporations, for example, The Mumbai Municipal Corporation habitually delegates its sanitation responsibilities to approximately 200 distinct minor contractors, each employing fewer than 20 individuals, thereby availing itself of exemption from the aforementioned regulatory provisions.[ix]
Further, Sec 25B of the Industrial Disputes Act of 1947 confers upon all contract workers the right to petition for a permanent position provided they have consistently rendered services within a particular role for a duration of 240 days. Consequently, a prevalent practice exists wherein workers are recurrently contracted for a duration of merely seven months, or 210 days, subsequently necessitating the signing of new contracts under alternative companies, despite the continuity of duties.
Loopholes in the Precedent
While Municipal Corporation of Gr. Mumbai v Kachara Vahtuk Shramik Sangh, a legal battle fought from 1995 to 2016, is celebrated as a landmark case in guaranteeing permanency to 2700 contract workers, The efficacy of the judgment is circumscribed to conferring permanency solely upon the 2700 petitioners, neglecting to address the inherent structural deficiencies within the contract labour framework at large. It restricts the purview of the union’s recourse to the industrial tribunal solely to discrete cases concerning individual sanitation workers, precluding the filing of overarching appeals seeking universal conversion of contractual positions into permanent employments. Thus, the union would be necessitated to institute fresh litigations in successive instances of contractual employment engagements.
The rationale behind the grant of permanency rested upon the assertion that the individuals in question were effectively functioning as employees of the Corporation under a facade of sham contractual arrangements, with the contractor lacking proper licensing under the Contract Labor Regulation and Abolition Act (CLRA). By deeming this case as falling outside the purview of the CLRA, the Bombay High Court ostensibly delineated a dichotomy between contractual workers and those specifically involved in the litigation i.e. those deemed to be working under a sham contract, notwithstanding the broader applicability to other contractual sanitation workers, who find themselves in analogous structural predicaments. Furthermore, the Court endorsed precedents such as Surendranagar District Panchayat v Dahyabhai Amarsinh and R.M. Yellatti v Asst. Executive Engineer, which impose the onus on workers to furnish tangible evidence substantiating their claim of having worked for no less than 240 days, disregarding the economic, social, and structural impediments that render such a task arduous for impoverished sanitation workers.
By upholding cases akin to Pune Municipal Corporation v Dhananjay Prabhakar Gokhale and Umadevi v State of Karnataka, the Court perpetuates the notion that even if a temporary employee surpasses the 240-day threshold, permanency cannot be conferred in the absence of available permanent positions. In this particular instance, permanency was solely granted due to the imperative need for post creation, exacerbated by the executive government’s failure to deliberate and decide upon such measures, rather than granting such permanency for continuous years of service.
Despite the Court’s acknowledgment of the perennial nature of sanitation work, no discernible effort has been made to abolish the contractual system utilized by municipal corporations. Although the Supreme Court has issued guidelines advocating for the rehabilitation of Safai karamcharis to mitigate the hazards of their working conditions, as evidenced in the case of Dr. Balram Singh v Union of India, the repercussions for contractors found to be negligent typically amount to merely “losing the contract” or facing “possible blacklisting.” Regrettably, such measures fail to address the fundamental concerns of the workers, who inevitably face job insecurity in the event of the contractor losing the contract or being blacklisted.
This glaring oversight underscores a critical gap in the legal framework, which neglects to adequately safeguard the livelihoods of sanitation workers amidst the vagaries of contractual arrangements within municipal corporations. The legal loopholes evident in the Kachra Vahtuk Shramik Sangh case manifested in the 2023 decision of the Bombay High Court in Kalyan Dombivali Municipal Corporation v Municipal Labour Union against the interest of the sanitation workers, merely five years following the acclaimed ruling in the Kachra Vahtuk Samiti case. In this instance, the Court denied permanency to nearly 100 contractual sanitation workers, citing the failure to meet the criteria for establishing an employer-employee relationship as delineated in the precedent set by Balwant Rai Saluja v Air India Limited.
One of the primary justifications for this denial was the workers’ inability to furnish sufficient evidence in their favour, a consequence stemming directly from the burden imposed on contractual workers by previous rulings. Another rationale was the assertion that only the contractor received payment from the Municipal Corporation, while the contractor bore the responsibility of providing equipment and remunerating the sanitation workers. However, it was incontrovertibly established that the Municipal Corporation exercised control and supervision over the workers. Despite the striking parallels between this scenario and the factual circumstances of the Kachra Vahtuk Samiti decision, the Court’s ruling in the Kalyan Dombivali case diverged significantly. Decisions of the Court in case like Raja Ram v Chairman National Insurance Corporation ltd. show how the judiciary has been of little assistance in ensuring regular pay scale for temporary and contractual workers.
An Alternative Approach?
In contrast to the approach taken by the Bombay High Court, the Madras Court has granted permanency to its sanitation workers through a distinct line of reasoning, significantly influenced by the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. This state legislation stipulates the conferment of permanent status on employees who have worked for 480 days within two calendar years without differentiation between regularly or irregularly appointed temporary employees. The Act, being a beneficial legislation, aims to grant permanent status to qualifying workers. The Court emphasized that principles established in cases such as Umadevi v State of Karnataka, pertaining to irregular appointments, do not apply to matters governed by specific labour statutes conferring permanent status on certain workers.
Conclusion
The judiciary’s intervention is warranted only in instances of unfair labour practices, such as the failure to fill permanent posts despite availability or the continued employment of workers as temporary or daily wage employees despite performing the same duties as regular employees at lower wages. The authority to create permanent or sanctioned posts lies beyond the purview of the judiciary. In cases where no such posts are available, directing regularization based solely on years of service would be impermissible, as that may encroach upon the doctrine of separation of powers as creation of posts is a prerogative of the executive. This stands in contrast to the approach of the Bombay High Court, which directed the executive to create such posts. Thus, the approach of the Madras High Court seems more stable and favourable to workers than the Bombay High Court as it prevents exploitation of sanitation workers without violating the doctrine of separation of powers and the changemaker here was the beneficial legislation enacted by the Tamil Nadu Legislature.
In conclusion, it is evident that judicial rulings concerning contractual sanitation workers have predominantly addressed their concerns superficially, lacking in substantive solutions to address the underlying structural and foundational issues. While judicial efforts to mitigate exploitation are commendable, there is room for improvement. State legislations hold potential as significant agents of change in this regard.
[i] K Debi S Saini, The Contract Labour Act 1970 Issues and Concerns, Indian Journal of Industrial Relations , July 2010, Vol. 46, No. 1 (July 2010), pp. 32-44
[ii] Sukhadeo Thorat, Challenges and Policies to Address the Persisting Problems of Sanitation Workers in South Asia, ILO (2021)
[iii] Research Brief: Bodies of Accumulation: A Study on Women Sanitation Workers, PRIA (2018)
[iv] Research Brief: Lived Realities of Women Sanitation Workers in India, PRIA (2019)
[v] Research Brief: Lived Realities of Women Sanitation Workers in India, PRIA (2019)
[vi] Abhishri Swarup and Agrim Gupta, Analysing the Working Conditions of Sanitation Workers with Special Reference to Urban Slum Dwellers in a Post COVID-19 Reality, International Journal of Policy Sciences and Law Volume 1, Issue 1 (2021)
[vii] World Bank, ILO, WaterAid, and WHO. 2019.“Health, Safety and Dignity of Sanitation Workers: An Initial Assessment.” World Bank, Washington, DC.
[viii] Dr Santosh D Sabale, The Plight of Safai/Sanitation Workers in Pune City: Issues and Challenges, Research J. Humanities and Social Sciences(2017); 8(4) Oct- Dec:424-432 >
[ix]Aarifa Johari, How Indian firms use dirty tricks to deny sanitation workers their rights.
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